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Cite as: [2004] UKIAT 109, [2004] UKIAT 00109

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APPEAL No. AA (Adjournment –provenance of fresh evidence) Afghanistan [2004] UKIAT 00109

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 29 March 2004

Date Determination notified: 17 May 2004

Before

Mr H J E Latter – Vice President

Mr C Thursby

Between

	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Miss S Crane of Counsel.

For the Respondent: Mr L Parker, Home Office Presenting Officer.

DETERMINATION AND REASONS

The Appellant, a citizen of Afghanistan, appeals against the determination of an Adjudicator, Mr I J French, who dismissed his appeal on both asylum and human rights grounds against the decision made on 22 February 2001 giving removal directions following the refusal of his claim for asylum.

The appellant arrived in the United Kingdom on 28 September 2000 concealed in a lorry. He claimed asylum on entry. The appellant was required to attend an interview on 22 January 2001 but he failed to attend. His application was refused both on its merits and on non-compliance grounds for the reasons set out in a letter dated 1 February 2001. At a hearing on 23 August 2001 an Adjudicator determined that the refusal on non-compliance grounds was not sustainable and the appeal was adjourned to give the Respondent an opportunity to interview the Appellant. There were a number of subsequent hearings but still the Appellant was not interviewed. On 7 June 2002 it was submitted that the appeal should be allowed under Rule 33 of the Procedure Rules 2000 or alternatively listed for a substantive hearing. The appeal was eventually listed for hearing on 7 November 2002. The delay between August 2001 and November 2002 was wholly unnecessary. The appeal should have been determined on its merits when initially listed in accordance with the directions in Ali Haddad (00/HX/00926*).

The Adjudicator summarised the basis of the Appellant's account as follows. He comes from a village known as Qalai Qazi near the town of Chardah, some 30 to 40 kilometres west of Kabul. His father had been a member of the Ittihad-i-Islami party which the Appellant joined in 1984. The party was opposed to the Russians, then the Najibullah regime, the Shias and ultimately the Taliban. The area in which the Appellant lived was mainly Shia. He had a garage business in Kabul where he employed two or three people. He went to the business daily.

After the Taliban gained control in 1996 he experienced continuous persecution and harassment. He was regularly stopped and asked questions about his religion and why he did not grow a beard. In June 1998 he was driving home from work when he was stopped and his car searched. The Taliban who stopped him found some audio tapes and demanded to know why he was listening to music. There was an argument. He was arrested and detained in prison for three months during which time he was severely ill-treated, receiving knife wounds to his right hand and both legs. His release was secured by his cousin paying a bribe of US$3,000 to the Taliban. He returned to his business but remained in fear of the authorities.

In August 2000 the Taliban received information that he was actively involved with the Ittihad-i-Islami and in possession of weapons at his home. He was at work when his home was raided by armed members of the Taliban. They did not find any weapons but they did find the Appellant's membership cards and photographs of other members of the party. The Appellant was told that he had to report to the Taliban authorities. He was afraid and decided to leave. He went to hide at an uncle's home temporarily. He felt he had no choice but to leave Afghanistan and he paid an agent US$11,000 to make the necessary arrangements.

He left Afghanistan on 13 September 2000 travelling by foot to Tajikistan where he remained for two days. He then travelled to one unknown country by car and then to another where he remained for two days. He travelled by lorry to the United Kingdom arriving on 28 September 2000. His claim was that he could not return to Afghanistan because he feared the Taliban authorities.

In his oral evidence before the Adjudicator he said that before the Taliban were in power he had been associated with the Ittihad-i-Islami which was fighting against Shias. When the Taliban came to power they finished off the Shias but they were now back in power and he was in fear of them. If they caught him, he would be hanged. He had not previously mentioned his fear of the Shias as then the Taliban had been in power but they no longer existed as such. The Ittihad-i-Islami was a large party and had some members in the government. The Appellant was asked if he feared returning to his own area or to Kabul and also asked why he could not go to an area where there was a Pashtun majority. He said that he could not do that as he did not know where his land was or where he was brought up.

The Adjudicator reviewed the evidence. He noted that there were some discrepancies between the oral evidence and the written statements as to whether or not the Taliban had found membership cards belonging to the Appellant. The Adjudicator regarded these discrepancies as minor. He was satisfied that the Appellant was a Pashtun who had lived to the west of Kabul and had a business in Kabul itself. He had been a member of a group opposed to the Taliban. The basis of his claim was the treatment he feared from the Taliban. His evidence made no mention of any fear of another group until the statement prepared immediately before the hearing and in his oral evidence at the hearing itself. Although he confirmed he had been afraid of the Taliban he said that he had to flee to avoid the Shias. The Adjudicator did not accept that evidence. He found that the Appellant had been a member of a group which joined in the loose alliance opposed to the Taliban under the title of the Northern Alliance or United Front.

The Adjudicator accepted that there were reports of some Pashtuns suffering difficulties at the hands of other groups following the change of regime but he did not find that this would be the case for the Appellant. Even if he had not wanted to return to his own village west of Kabul, he had long-standing connections in Kabul itself even if his business was no longer there. Looking at the situation in the round, the Adjudicator did not find that if the Appellant were returned to Kabul he would now face a real risk of persecution or of treatment contrary to Article 3 which passed the minimal level of severity necessary for the Article to have effect.

The Adjudicator found that the appellant's actual fear was of the Taliban regime. That fear had now been removed and his alleged fear of Shia groups had been raised at the last minute in an attempt to bolster his claim. The appeal was dismissed on both asylum and human rights grounds. Unfortunately the Adjudicator's determination was not signed until 4 June 2003 even though he had prepared it on 13 November 2002 a matter of days after the hearing. The Adjudicator has endorsed on the determination that this delay was caused as the file was lost in transit following dictation of his determination but the file was subsequently recovered.

In the grounds of appeal it is asserted that fresh evidence is now available to support the Appellant's contention that he has good reason to fear the Shias. The grounds refer to a newspaper article and other documents. It is contended that this evidence was not available at the date of hearing and that if this new evidence is accepted it would mean that the Appellant's life would be in danger if returned to Afghanistan due to his activities as a member of the Ittihad-i-Islami party (the Islamic Unity Party). Permission to appeal was granted by the Vice President in a determination dated 6 August 2003 and issued to the parties on 26 August 2003.

The Vice President directed that the originals of the new documents should be sent without delay to the Respondent in order that he might examine them and if he chose authenticate them. He indicated that before deciding whether or not to admit the documents the Tribunal would wish to know how and when they came into the appellant's possession. He directed that a statement from him should be filed with a copy being sent to the Respondent no later than fourteen days before the hearing. The Appellant's representatives failed to comply with these directions. Copies of the documents were enclosed in his bundle served on this authority on 24 March 2004 and on the Presenting Officers' Unit although a copy did not reach Mr Parker before the hearing. A brief witness statement was faxed to this authority on the morning of the hearing.

Miss Crane accepted that there had been a failure to comply with the directions. She argued that there should be an adjournment so that the originals could be considered by the Respondent. She accepted that there was no proper explanation for the failure to comply with directions but argued it would be in the interests of justice for these documents to be properly considered. Mr Parker opposed the adjournment rightly pointing out that permission had been granted in August 2003 but nothing had been done until the last minute.

The Tribunal refused the application for an adjournment. The appeal is based on an assertion that there are further documents relevant to the appeal. The appellant's representatives have been in possession of these documents since July 2003. The Vice President when granting permission made clear directions that the originals should be sent to the respondent without delay. The words "without delay" are even printed in bold on the grant of permission but still no notice has been taken of this direction. He also directed that a witness statement should be filed not later than fourteen days before the date of the hearing to explain how and when these documents came into the Appellant's possession. The statement was not prepared until effectively the date of the hearing. There is no proper basis for an adjournment. The Tribunal is not satisfied that the refusal to grant an adjournment would prevent the just disposal of this appeal: Rule 40 of the 2003 Procedure Rules. However, as copies of the documents were annexed to the application for permission to appeal and are enclosed in the bundle of documents submitted to the Tribunal, we are satisfied in the particular circumstances of this appeal that the proper course would be for the documents to be admitted in evidence.

Miss Crane submitted that the documents showed that the Appellant would be of interest to the authorities. She relied in particular on a newspaper article which described the Appellant as wanted and to a further document purportedly showing that there was an arrest warrant for the Appellant. She also produced three photographs showing the Appellant in a group of armed men. There was also an identity card and a letter from the Islamic Unity Party. She submitted that these documents confirmed that the authorities had a continuing interest in the Appellant. There would be a real risk of persecution or ill-treatment contrary to Article 3 on return. She conceded that the Appellant no longer had any fear of the Taliban but was at risk from both the authorities and from Shias.

Mr Parker submitted that the Appellant's witness statement about the documents was very scant. The Appellant had telephoned his wife after his appeal before the Adjudicator had been refused. She told him that the government had spread the news that he should be arrested and killed. She had documents or papers in relation to his possible arrest. He told his wife that all the documents she had collected should be sent to him. He had not known about these documents before he made this telephone call. His wife gave the documents to her brother who went to Pakistan and posted them to the United Kingdom.

At the hearing two stamped envelopes were produced. One was posted from Peshawar in May 2003. The other bears Afghan stamps and is postmarked at Kabul dated either May or June 2003. Mr Parker submitted that no inferences could be drawn from the Appellant's identity card which appeared to show his status as single. The newspaper article could not be treated as reliable. There was no indication of what the newspaper was nor the date of issue, save for the date 1381 in the heading which would correspond to year 2002. It was not clear from the photographs which one was the Appellant. There was no evidence when the photographs were taken or where. The letter from the Islamic Union referred to "according to our information…". There was no information as to the provenance of this document. The document purporting to be an arrest warrant appeared to be an internal document. It would be surprising if an original document of this nature would come into the possession of the Appellant's family. He submitted that the further documents produced were not reliable and did not undermine the Adjudicator's findings.

Miss Crane submitted in reply that it should not be held against the Appellant that his appeal had been inadequately prepared. He had now managed to obtain documentary evidence to support his claim. The issue was whether the documents were authentic. The Appellant was expressing a fear of a party involved in the interim transitional government. He would not be able to look to those authorities for protection.

The only explanation the Tribunal have for the late receipt of these documents is that when the Appellant telephoned his wife after his appeal was dismissed by the Adjudicator, he was then told that the government had spread news that he would be arrested and that there were documents relating to his possible arrest. It is said that the Appellant told his wife that those documents should be sent to him. They were given to his brother who posted them from Pakistan. There is no further evidence apart from the documents themselves to explain what they are, where they came from or how they came into possession of members of the Appellant's family.

There is nothing particular contentious about the document purporting to be an identity card. Mr Parker pointed out that it records the Appellant as single whereas he is married. It could be that with the upheavals in Afghanistan he did not have his identity card updated in the place provided on the relevant page of the card. Two envelopes have been produced showing that something was received by post from Pakistan and from Afghanistan but the envelopes are of no further evidential value. There are also three photographs which show the Appellant with a number of armed men. There was no information when these photographs were taken or where. Obviously they must have been taken before the Appellant left Afghanistan when his fear was of the Taliban. They have no relevance to his present asserted fear.

The Appellant seeks to rely on a newspaper article. As translated this reads as follows:

'Announancment

To all the beloved of the country are informed that anyone, who knows about Abdullah son of Abdul Karim cast 'Alozai'; who is an active member of the Islamic Union. Anyone with information about his temporary or permanent where about should report to the Sixth Regional Police Station. You can claim a reward from the station or from the state. And doing so you will fulfil loyalty to humanity.'

The original document produced is half a page only. There is nothing to indicate what this newspaper is or when it was published save for the date of 1381. In the absence of any further evidence about this newspaper article, the Tribunal are not satisfied that there is any reasonable degree of likelihood that it is a genuine or reliable document. Anyone familiar with this jurisdiction knows how easy it is to obtain evidence of this nature which is manufactured to support a claim for asylum. On the basis of the information available to the Tribunal, we have no hesitation in rejecting this document as unreliable.

We now consider the letter from the Islamic Union. This letter as translated reads as follows:-

'Dear Brother Abdullah Alozai

May there be peace upon you and goodwill to the Almighty.

Dear brother, as we know that you are a very active member of our Organisation of Islamic Union. According to our information we would like to inform you that the Hazb-e-Whadat Shia have decided either to arrest you in any case or to possibly kill you under any circumstances. You are warned that you should not returned back to Afghanistan as your life is in danger in this place and there is no peace. Therefore we are requesting you should stay away from Afghanistan and do not attempt to come back.'

There is no address on the document. Even as translated it refers to "according to our information". The lack of any evidence about the provenance of this document leads us to the view that there is no reasonable degree of likelihood that any reliance can be placed on its contents. The final document adduced is the document which is said to indicate that the Appellant is wanted by the authorities. This appears to be an internal document. As translated this reads as follows:

'To respectable sixth Regional Security Office!

Rajab Ali son of Raza Ali resident of Pull-e-Surrukah, Sixth District has made this complaint against Abdullah son of Abdul Karim Alozai. As written in his statement that he has been jailed and severely hurt by him, during the previous regime when he was in the power. The victim made his appearance before the ministry and the ministry has issued an arrest warrant against him so he should be prosecuted against the charges and to provide justice. The complainant is an active member of the Hazb-e-Whadat and justice should be provided to him.'

There is no explanation how this came into the possession of the Appellant's family. The Tribunal are not satisfied that there is any reasonable degree of likelihood that this document is genuine.

In summary the Tribunal are not satisfied that any of the documents produced, save perhaps the identity card which has no material bearing on the appeal, are reliable documents on which any weight can be placed. They do not provide any adequate basis for undermining the Adjudicator's findings and conclusions. He accepted that the Appellant's fears had been of the Taliban. Following the change of regime the Appellant no longer had a well-founded fear of persecution in his home area or in Kabul. He found that the Appellant's alleged fear of Shia groups had been raised at the last minute in an attempt to bolster his claim. In the judgment of the Tribunal the documents belatedly produced before us are a further attempt to manufacture a specious claim for asylum.

In summary the Adjudicator's findings and conclusions were properly open to him for the reasons he gave. The further evidence produced does not cast any doubt on the correctness of his conclusions.

It follows that this appeal is dismissed.

H J E LATTER

VICE PRESIDENT