SL and Others (Returning Sikhs and Hindus) Afghanistan CG  UKIAT 00137
Date of hearing: 7 March 2005
Date Determination notified: 07 October 2005
|SL and Others
|Secretary of State for the Home Department||RESPONDENT|
Afghanistan country guidance as to whether as a class Afghan Sikhs and Hindus are entitled to international surrogate protection Held: (1) there is no evidence to support the claim that the Afghan Sikh and Hindu minorities in Afghanistan are persecuted or treated in breach of their protected human rights under Article 3 of the European Convention by the State or that the degree of societal discrimination against them is such as to give rise to any such persecution or treatment of them as a class (2 )following UNHCR guidance their status as Afghan Sikhs and Hindus is a factor to be taken into account in assessing individual claims on a case by case basis
The claim of the first Appellant Mr L
"The Immigration Appeal Tribunal did not consider the applicant's ground of appeal that the Adjudicator did not consider the risk of persecution in the applicant's home area of Jalalabad as the Adjudicator appeared to focus on the position in Kabul (see paragraph 19 of the determination)."
"The basis for the appellant's claim is set out in the SEF, a separate statement and in the interview. He says that, as a Sikh, he has a fear of persecution in Afghanistan because of his religious beliefs. He is from Jalalabad and he ran a shop there selling textiles and other goods. The appellant, in his statement, details problems that Sikhs have had for many years at the hands of the Muslims in Afghanistan, including lack of access to education, lack of religious freedom, and attacks on the Gurdwara. The appellant says that his father was arrested, beaten, tortured and detained in 1995 by the Mujahideen who were in power at the time (now the Northern Alliance Forces). The appellant's father was held for 15 days and the family had to pay a large amount of money for his release. The appellant himself was, he says, beaten and tortured by the Taliban in 1998 whilst he was returning from Kabul and they also took his money and possessions. He had problems again in 2001 when he was beaten because he had not locked up his shop during Muslim prayers and the shop was closed for 15 days as a punishment. In April 2002 (after the Northern Alliance had taken power in the country following the fall of the Taliban) the appellant says that his brother, [JS] and [J]'s son were beaten and detained by the Northern Alliance Forces, the brother was killed and the appellant's nephew disappeared but this incident triggered the appellant's departure from his country in his interview he states that this incident was in March not April. The appellant left in May 2002 and travelled with an agent via Pakistan and other countries."
"The appellant's claim in relation to the more recent events was that he himself was attacked and forced to close his shop at some stage and that in April 2002 his brother was detained and killed by the authorities. I accept that the appellant may have had some problems and may have been approached, as he claims, by people and harassed by them. However, there is no evidence at all that his problems were at the hands of the authorities nor that they were necessarily related to his religious beliefs. The appellant was sure in his evidence that those who visited his shop were from the Northern Alliance but, asked how he knew, his answer was that "they are all the same they come and say these people from the government grow beards and say they are Mujahideen "
This is plainly an assumption on the appellant's part, it may have been correct but in the absence of any evidence in the background material that there is continued harassment of Sikhs from the authorities I cannot find that the appellant's assumption is necessarily true.
The CIPU report notes that there are still concerns over security in the country, but the situation is volatile and the crime rate is high in the absence of any evidence of particular religious persecution or evidence from the appellant as to who was causing him problems after November 2001, I cannot find that it was necessarily the authorities who were harassing him nor that his problems were because of his religious beliefs at all. The appellant has failed to state properly what happened to him, his only assertion is that his shop was closed and he states that he was beaten but it is difficult to ascertain what really occurred, how badly he was beaten, by whom and how and thus I cannot conclude that the appellant has been subjected to any persecution for a Convention reason. The problems he has had have not, on a lower standard of proof, been proven to amount to persecution for a convention reason.
The same conclusion can be drawn from the evidence about the appellant's brother. I do accept that the appellant's brother was killed in April 2002 (his evidence, although rather muddled did seem to be a true account). The appellant initially gave the impression that his brother's body was dumped at their home but later it became apparent that it was his sister-in-law's home where he was left, after a short disappearance. The brother and sister-in-law had lived in Kabul and this again is where I find that the evidence presented simply does not prove that the appellant's brother's death was related to his religion or that it was necessary [sic] carried out by the authorities. The appellant's beliefs may be correct but there is evidence of serious criminal offences in Kabul and there is no evidence at all that there is any sort of systematic persecution, detention, abduction or killing of Sikhs in Kabul or elsewhere. I cannot accept that the appellant's brother's death is any way evidence that the cause of death was religious persecution.
I find, therefore, that although the appellant and his family may have had problems in the past, any problems that they have suffered under the current regime are not necessarily perpetrated by the regime or its agents not is it related to the appellant's religion in any way."
"25. Mr Tattersall [who appeared for the appellant before her] did not refer me to any evidence which supported such a claim and I note that the document to which he referred me as specifically relating to Sikhs, at page 26 of his bundle was dated prior to the previous appeal hearing and does not, in any event, appear to represent an independent and objective view of the situation for Sikhs in Afghanistan. I also considered the documents referred to in the written representations from the appellant's representatives which appear in the respondent's bundle and have considered the documents in the appellant's Court bundle, but again find no evidence to support the claim that the situation for Sikhs in Afghanistan is such that to return any Sikh there will amount to inhuman or degrading treatment nor that the security situation in Afghanistan is such that to return anyone there would breach Article 3 of the ECHR. I have considered the latest UNCHR report, at page 195 to 197 of the appellant's bundle, but note that, whilst the UNCHR considers that Sikhs and Hindus face discrimination in Afghanistan, their opinion goes no further than to say that Sikhs and Hindus are amongst those who may qualify for protection. Given the findings of the Adjudicator in the previous appeal, that there was no evidence that the appellant had experienced problems from the authorities in Afghanistan as a result of his religion, I do not find that this document takes the appellant's case any further.
26. In the circumstances, given the absence of any evidence of the change in the situation for Sikhs from that considered by the Adjudicator in the appellant's previous appeal, I find no reason to depart from the Adjudicator's findings in her determination of that appeal. I find, therefore, that there are no substantial grounds to believe that the appellant would be subjected to torture or to inhuman or degrading treatment or punishment pursuant to Article 3 of the ECHR or that his human rights would be infringed on any other grounds, either due to his religion or otherwise, if he were returned to Afghanistan."
The claim of the second Appellant Mr T
" . You claim that since you were a child you have been harassed by Muslims in your area on account of your Sikh religion. You claim that the Mujahideen made problems for your family and then when the Taliban took power things got worse. You claim that the Taliban began making problems for you. You claim that the Taliban took your brother and tortured him for 2 days. You claim that the Taliban used to assault you on a regular basis. You claim that every time you went outside they would hit you with rifle butts. You claim that the Taliban would come to your home and drag you from the house and beat you stating that it was a Muslim country and non-Muslims are not allowed to live. You claim your home was bombed during the Taliban rule, however you do not know who dropped the bomb. You claim that you have problems with your neighbours who would mistreat you because of your religion. You claim that you were seen as non-Muslims in your area. You claim that your neighbour's young son was taken by the Taliban to make him convert to Islam. You claim that because of this and to protect you and your faith, your father arranged for you to leave Afghanistan. You fear you will continue to receive this discrimination on account of your religion if you return."
"The appellant's oral account was contradictory in that he said that he feared for his life and yet every day for a considerable number of years the appellant's father and brother would go out to work in their two shops. The appellant also attended the Gurdwara (the temple) regularly. The most likely explanation is that although the appellant and his family were undoubtedly discriminated against while in Afghanistan, in reality he suffered no more than low level bullying which although unpleasant did not amount to persecution."
"I accept the importance of such guidance although in the present circumstances of this case, I see no compelling reason as to why a young fit single man such as the appellant would have to return to his home area of Jalalabad rather than Kabul. It is not unduly harsh to expect him to stay in Kabul. Accordingly the question is whether or not he has a well-founded fear of persecution if he returns to Kabul. There is certainly some small risk to the appellant's human rights (see the appellant's bundle at page 40) and there is little on offer for minority groups in Afghanistan (see the appellant's bundle at page 30 and page 57 in the CIPU report paragraph 6.88). However, the mere fact that returning minority groups such as Hindus feel that they can raise proceedings in the District Shura for the return of their land indicates how far things have improved (see CIPU 6.89). The CIPU report at 6.84 states that the EU's special representative and UNCHR, Kabul told a Danish Fact-Finding Mission to Afghanistan in September 2002 that they believed the situation for non-Muslim groups such as Hindus and Sikhs was generally good. Paragraph 6.90 shows that religious freedom has improved although there remain concerns for the future (paragraphs 6.91 and 6.92). Although the situation is not a happy one, it appears that it does not amount to persecution."
The challenges raised in the grounds of appeal are in summary as follows: (a) that the Adjudicator had failed to make clear findings of fact although apparently accepting the general factual credibility of the claimant at paragraph 12 of his determination; (b) that the Adjudicator had failed to have proper regard to the background evidence as to the situation in his home area of Jalalabad but, had he done so, must have concluded the Appellant was at risk in his home area as an ethnic Sikh; (c) that on a proper reading of the objective evidence internal relocation was not open to the claimant. Leave was granted on statutory review by Owen J on the basis that it was arguable that the Adjudicator had erred in his general approach to the risks faced by Sikhs in Afghanistan.
The claim of the third Appellant Mr S
"11. The appellant is a practising Hindu and claims to have been persecuted in Afghanistan because of his religion. The appellant said that during his education he faced harassment from Muslim students causing him to leave school at an early age and continue religious studies at home. The appellant said that he was unable to attend higher education because he was a Hindu and there were no jobs for him at the end of his education. The appellant joined his father who was a herbal medicine doctor. The appellant joined the [A] Pharmacy, which his father owns.
12. In 1991 the appellant bought a shop from an Uzbek person who had left the country. The appellant said that his brother began running a business from the shop as a wholesaler. The appellant bought a pharmacy in 1993 and ran his business from there called the [K] Pharmacy. The appellant said that the Mujahideen used to take medicine from the pharmacy and cash by force. The appellant said that he would regularly dress as a Muslim and wear a Kula and shawl to protect himself from the Muslim authorities. At the beginning of 1994 the appellant was on his way home from Jalalabad where he had been purchasing stock when he was stopped by a group of Mujahideen. The appellant had forgotten to cover his hand, which had an Om sign (denoting the Hindu religion). The Mujahideen became angry that the appellant was dressed as a Muslim and beat him severely and took him to the mountains where he was detained for fifteen days. The appellant was released when his father paid a large sum of money to the group.
13. The appellant said that under the Taliban most of the temples were closed down except for one, which the appellant attended in secret. The appellant said that as a non-Muslim he had to display a yellow flag outside his house and wear a different type of clothing in order to signify a different religion. The appellant said that the Taliban were harassing the appellant and his family to convert to Islam or leave the country. The appellant said that his father did not want to leave the country and because he was an elderly person the appellant did not want to leave his father alone in Afghanistan. The appellant said that the Taliban visited his house on many occasions and destroyed their religious books and statues.
14. Following the defeat of the Taliban the Northern Alliance took control of Afghanistan. In October 2002 whilst at his shop a group of Northern Alliance men came to the Appellant's shop with the Uzbek man from whom the appellant had purchased the shop. The appellant was told that the shop belonged to the Uzbek man and that he was to hand over possession of the shop to him. The appellant was told that the Uzbek man called Afzal was in possession of an order from the Court stating that the appellant should leave the property within the next fifteen days. The appellant appealed to the Court and produced the legal documentation showing his ownership of the shop to the Judge. The appellant said that the possession order in favour of Afzal was cancelled as a result.
15. A few days later the same men returned to the appellant's house armed with guns and demanded that the appellant hand over the Court Order. The appellant refused and was threatened. The appellant returned to Court to complain but the Judge that he saw refused to help him. The appellant says that he knows this was because Afzal had contacts with Rashid Dostrum, a powerful warlord. The appellant says that the Judge told him informally that if he converted to Islam then he would be able to help him.
16. Two days later, men came to the appellant's house and killed the appellant's brother Sanjay. Following the appellant's brother's funeral men arrived at the appellant's house. The appellant's sister-in-law was present and began to scream at the men that they had killed her husband. The armed men forcibly took the sister-in-law with them and began shooting at the rest of the family. A few days later the appellant found the body of his sister-in-law outside his house.
17. The appellant and his family left Afghanistan in November 2002 travelling from Kabul to Jalalabad by bus and then crossed into Pakistan by bus. The appellant remained in Pakistan for seventy days and then left the country via Karachi airport with the assistance of an agent. The appellant travelled to a number of unknown countries before being placed in the rear of a lorry and arriving in the United Kingdom on 10 February 2003."
"The appellant said that when his brother was killed he was at his shop with his mother and father, two brothers and their families. The appellant agreed that his brother was the only person to be shot and killed and that the men did not take the papers concerning the shop on that occasion but returned a few days later. The appellant said that his brother was killed because of a number of factors including the dispute concerning the ownership of the shop and also because of his religion. It was put to the appellant that if the source of the dispute were religion then the men would have killed other members of the family. The appellant said that he had already lost his shop, his brother and sister-in-law and that if he had remained in Afghanistan then they would have taken one of his daughters. The appellant said that the precise cause of his sister-in-law's death was not known, there were no signs of torture or bullets and the family assumed that she had been strangled by her own shawl. The appellant said it was possible that she had committed suicide."
"The appellant says that he cannot seek redress from the Courts however, the first Judge rescinded the possession order obtained by Afzal and accepted the appellant's legal right to ownership. The second occasion the appellant went to Court, he went to complain about threats received by Afzal and was therefore seeking a different remedy from the Court, it may be that the Judge was unable to assist him on this occasion because the matter had become a criminal matter. In these circumstances, it may be that he should have first complained to the police authorities and the incident could have been fully investigated. I do not accept that the appellant has been denied a fair hearing in Court and do not accept that the second Judge refused to assist the appellant because of his religion."
The Situation of Sikhs and Hindus in Afghanistan
"38. Before we can consider the situation of each appellant, it is appropriate to give our views in respect of the situation of the Sikh community in Afghanistan generally. The evidence which we have considered above certainly points to a situation of general societal discrimination and of interference with economic and educational rights in respect of which the state does not appear to offer adequate protection or provision. Because of the concession made by the respondent in the case of B, we do not have to consider the evidence other than in relation to Kabul but there is no reason to believe from the evidence that the situation of Sikhs elsewhere in Afghanistan, in the limited areas in which they reside, is any better than in Kabul. It may be worse. In Kabul, SIAF might have the ability to provide a sufficiency of protection as KFOR does in Kosovo but it will not intervene unless asked to do so by the interim administration and there is nothing we can find in the evidence before us to demonstrate that the administration does make such requests in relation to the protection of members the Sikh community. Indeed, such evidence as we have been referred to would seem to be to the contrary. Nonetheless, we accept that the mere presence of SIAF is likely to have a practical restraining effect on overt public excess. Considering the high threshold to be reached before the Conventions are engaged, it does not seem to us that these matters, however hard and difficult it might make the lives of the Sikh community, will be sufficient to say that there is a general risk of persecution or breach of Article 3 rights simply by being an Afghan Sikh. To that extent, we agree with Miss Jones' submission that it is the individual circumstances of each appellant which require consideration and that, as UNCHR accepts, it is not the case that Sikhs as such are entitled to recognition as refugees but rather that they form a class of whom individual members may, on the basis of their particular situation, properly qualify for international protection.
39. To that extent, the material before us does supersede that before the Tribunal in Gulati [ UKIAT 02130] and suggests that K (Afghanistan)  UKIAT 00057 also may be unsafe in so far as it considers on the evidence there reviewed that there is a sufficiency of protection in Kabul for those whose previous history points to past persecution or adverse interest by members or factions of the Mujahideen, who retain a position of influence in Kabul. They may now have directly conflicting interests with those of returnees seeking to recover their property. Evidence of a past personal animus against a specific asylum applicant would also be of potential relevance.
40. We do not suggest that this picture of the current situation means there is a real possibility of or a reasonable likelihood of persecution in Kabul for all Sikhs but it is part of the background picture to be taken into account in considering the position of those to be returned to Kabul."
"Each of these cases involves casual street violence by Muslim Afghans on a Sikh or Hindu. In each case, except for E, there is some indication in the conduct of the aggressors that they have either selected their victim on that basis, or that the victim's traditional dress (wearing a Turban in the case of a man, or not wearing a veil in the case of a woman) has formed the basis for some particular humiliation. Mr Sheikh [the Presenting Officer] suggested that they amounted to no more than discrimination: we do not agree. While only D, a Hindu, was knocked out, and none of the victims suffered any serious physical injury, these were very nasty incidents of street hooliganism with a religious or racial pretext, which would have been regarded as a grave concern if they had happened in this country".
RS went on to say that the families of the victims were frightened to report what had happened to the authorities because they had lost trust and confidence in the new administration and because the police force consisted of former members of the Mujahideen.
"34. However, Mr RS's evidence, which for present purposes we have decided we ought to accept as passing the Karanakaran threshold, does appear to show three things. First, there is a reasonable likelihood of at least moderately serious violence against Sikhs because they are Sikhs; second, that is encouraged, and not guarded against by the perpetrators' perception of the authorities' attitude to it; third, there is nothing to show any specific commitment by either the international forces, or the Afghan authorities, to the protections of minorities generally, or the Sikhs in particular. In our view those add up to a real risk of persecution at the present time: that is certainly not to say that all Sikhs are being persecuted; but, on the evidence available to us (which was not in its present form before the Tribunal in IB 150), any of them who are identifiable as such run a real risk of it.
36. Until Mr RS's evidence has been authoritatively confirmed or disproved from some official source, it would be wrong to give our decision (which, so far as it differs from that in IB 150, relies on it entirely) the status of a "country guidance" case; but we do have to do the best we can with the individual case before us, and, for the reasons we have given at paragraph 34, we do think there was a real risk of Convention persecution or ill-treatment in this case, even on the minimal findings of fact made by the Adjudicator in the appellant's favour".
"From my conversation with [RS], I am unable to find evidence of discrimination by the state or other parties in Kabul. [RS]'s report was written nearly 5 months ago, and security seems to have improved in the area where the majority of Hindus and Sikhs live. However, throughout the length of our conversation, he did not make any comments that suggested that there was discrimination even at the time of his written statement. In the areas of crime, education, political representation, religious freedom and property rights, [RS] stated that there was no discrimination of Hindus or Sikhs based on their religious or ethnic background."
"that would provide a more recent, disclosable report than [that of RS of 14 June 2004] which indicated either that effective protection would be available to the Sikh community in Kabul, or that RS's report was accurate"
his interview, which he estimates lasted about 30 minutes, was of an informal nature in which he took occasional notes which he says were not comprehensive and that he used those notes as a basis of the report which he wrote, having taken the headings of the issues he raised from those matters set out in the 14 June report. He did not send a copy of the draft report to RS and did not ask him to confirm that the report which he had prepared was an accurate portrayal of RS's views.
39. In both IB and TK and KK the Tribunal was mindful of the need to bear in mind that RS could not be regarded as an impartial witness. Indeed he expressly made clear that he was seeking to speak for the Sikh minority of which he was a member. What we have recorded in the preceding paragraph serves to underline the need to ensure that what he says is not to be regarded as partial, in both senses of that word, and requires careful weighing against the general background evidence. A further limitation on the scope of his evidence is that it relates, as he makes clear, only to the situation in Kabul of which he can claim first hand knowledge. The most he can say (and such a reference appears only in his latest statement) as to the situation outside Kabul is that "there are often reports of shootings and deaths in Afghanistan, and for [sic] Sikhs and Hindus in particular". No such reports are before us. We note, however, that in none of his statements does he claim that any Sikh or Hindu in Kabul has been shot or killed and the only examples of ill-treatment given, as opposed to generalised claims, are those set out in the statement of 14 June 2004 to which we will refer later. Finally, there are some concerns as to his consistency which is, perhaps, most noticeable in the way in which he approaches the numbers of Sikhs and Hindus in Afghanistan. Although it is clear from the country reports that there is no agreement on this issue, one would expect one witness to be consistent in his own approach. Surprisingly, RS is not. In the first statement (December 2003) he says the number of Sikhs and Hindus in Afghanistan has decreased to around 300 families in Kabul; in the April 2004 statement he says that in 1992 there were over 30,000 Sikhs in Kabul but that there are now only about 3000 Sikhs in the whole of Afghanistan; by June 2004 "there are no more than 1500 families" who "are living in the temples and we cannot afford to maintain these people"; although there is no reference to population numbers in the fourth statement, by the time of the last statement (25 February 2005) "there are approximately 1200 Sikh and Hindu families and about 6,500 in Afghanistan as a whole". It is right to add that in June 2002 UNOCHA (the United Nations Office for Co-ordination of Human Affairs) estimated there were 1000 Sikhs in Afghanistan of whom about half were in Jalalabad but in July 2003 UNHCR said there were about 3500 Sikh and Hindu families mainly in Kabul, Ghazni, Kandahar, Helmand and Nangahar Provinces.
"Our children can't study in ordinary schools because the Muslim children tease them for their hair and bracelets", said Avtar Singh, head of the only Hindu school In Kabul and leader of the community in the capital, whose remarks refer equally to Sikhs. "So our children can only study in our temple, where we can teach only four subjects Maths, English, our own language and religion. We have run a school in a temple in the west of Kabul for the past 35 years. Before the wars, 5,000 students were studying there and others studies in ordinary establishments alongside Muslims."
Asked why they did not take their case to the ministry of education, Otar Singh said, "We want our children to study with Muslims in ordinary schools, with the help of the ministry. But at present we can't because, firstly, our children don't even know their own language, so how can they learn Dari (Persian). Secondly, other children will know that they are different, from their hair, bracelets and names, and will tease them."
In Ghazi Ayob Lycee, in the west of Kabul, 13 year old Manish Kumar, a lone Hindu in a Muslim school, said he had experienced no problems and got on well with his class-mates.
The principal of Ghazi Ayub School, Sadat, told IWPR, "Hindu boys and girls won't face any problems if they want to come here. Before the wars, half of our students were Hindus, and they all got on well together. We have told Manish Kumar that if he has any problems he should come straight to us."
Deputy Education Minister Zabihullah Esmati said, "Hindus are Afghans, and they have a right to go to school with Muslim children. The doors of every school are open to everyone. If anyone teases or bullies them they can complain to the school principal. And failing that, they can come and tell us their problems."
"In a report on land issues published in September 2003, UNHCR noted that there were some complicated cases regarding the land of members of ethnic and religious minorities who had returned to Afghanistan. They had been forced to sell their lands or property during the Mujahideen or Taliban regimes and now wished to recover them. The report noted "Their only legal claim is that they had been coerced to sell their land at the time, which would be difficult to prove. For example, members of the Hindu minority group in the provincial capital of Helmand, Lashkargha claim that they were forced to sell their shops in the main Lashkharga bazaar to Mujahideen commanders prior to their expulsion from the area. These groups are currently trying to recover their property, although most of them do not hold documents evidencing their title. Their cases are currently pending with both the District Shura and the district [sic]."
It will immediately be apparent from this passage that the following points emerge: (a) that some members of ethnic and religious communities are returning; (b) that they include those who may expect difficulty in regaining their former homes; (c) that they are prepared to take legal action to do so in the Afghan courts; (d) that the identified triable issue may be a sophisticated one relating to concepts of coercion and the setting aside of apparently valid transactions. In the one specific example given by RS, there is similarly the legal issue of right to inherit which would require evidential proof so that it is perhaps hardly surprising that the person in possession will not simply concede the claim made by the family, quite apart from the fact that he appears to be raising issues as to entitlement to compensation for repairs and improvements. Significantly, the occupier does not appear to say he will not leave but is imposing conditions on his doing so.
"The country's legal institutions suffered from lack of resources while the record of laws and regulations has been destroyed and much has disappeared during the years of conflict, leaving practitioners unclear as to the substance of the country's law. Although court systems exist from district and national levels, the influence of commanders and powerful figures often renders it impossible for fair and just decisions to be reached over land disputes".
But, the Constitution adopted in January 2004 confirmed that the judicial branch was an independent organ of state, providing also at Article 3 that no law could be 'contrary to the beliefs and provisions of the sacred law of Islam'. By 19 March 2004 the UN Secretary-General was able to report to the Security Council:
"There have been several achievements in justice sector reform. The decree of the reformed code of criminal procedure was issued in mid-February , providing a versatile system under which jurisdiction can be shifted to provincial courts from district courts where necessary. This should enable the gradual transfer of criminal cases to the formal justice system, though it is conditional upon an effectively functioning provincial infrastructure and the rehabilitation of district courts. Construction of provincial courts is under way in nine capitals, while the prioritisation of district courts will be determined by the Provincial Stabilization Strategy. On 21 February  a two week training-of-trainers seminar was initiated with senior judicial and law enforcement personnel on the new criminal procedure code. In addition, 450 judges are being trained by the International Development Law Organization, an inter-governmental organization that promotes the rule of law and good governance."
"UNAMA was of the opinion that institutions, which should protect people against assault are not powerful enough to do so if the perpetrators are warlords or powerful persons from the government or the police force. UNAMA had knowledge of citizens who have out standings (sic) with powerful individuals and therefore were not safe in Kabul, and have had to flee the country. There are cases where parents and siblings to the persecutors have been involved too. the Italian Embassy explained that there are major geographical differences in the ability of the legal system to provide rule of law and justice. The system is not satisfactory anywhere in the country and even in Kabul, which is regarded as the best functioning area, considerable improvements are necessary. Everywhere in the country Judges are subject to interference in their work. No Judge is free to make a ruling solely according to his own judgement. This lack of independence also applies to the police. The source pointed out that the legal system including the police and other administrative offices are influenced by the general security situation in the country."
5.74 According to the Danish Fact-Finding Report,
"The lawyers Union of Afghanistan stated that the Court system is almost in a state of chaos. When meeting in Court, it is possible to be confronted on the first day with a Judge who has trained only in religious law. On the next day it might be a Judge who has a law degree but uses Sharia law to protect himself against criticism. As a consequence, women continue to be imprisoned for infidelity. The source expected that in time the law reforms will have an impact that will change the present situation. The source explained that corruption is so widespread that access to legal institutions and to rule of law do not exist. Only a few percent of the cases come out with a just or correct ruling. Anybody can start a legal case, but it is the most powerful or influential person who will come out as the winner of the case."
5.75 UNCHR informed the Danish Fact-Finding Mission that
"The state cannot offer any protection for individuals against persecution and violation. As an Afghan, you have to go to your network to find protection. In spite of the efforts to establish a legal system with a functioning police and courts, warlords continue to rule. This also applies for conflicts concerning land." According to UNAMA, "Court sentences are not enforced if the local warlord does not agree with the ruling. It was pointed out by the UNAMA that judges are intimidated in several districts. In many areas, judges and prosecutors are in need of protection."
"As law-enforcement and judicial institutions function at varying levels in different parts of the country, procedures for taking people into custody and bringing them to justice do not follow an established code and often rely on the whims of local officials. Authorities subject Afghans to arbitrary arrest and detention, often with the aim of extracting bribes in exchange for a prisoner's release According to Article 28 of the criminal procedure code of 1965, which remains in force, police can detain suspects without charge for up to 24 hours during the course of an investigation, which can be extended for up to a week if the police apply to the attorney general's office. However, in many police detention centres, suspects are routinely held for weeks or months on end. This is in large part due to the lack of a functioning judicial system, as well as inadequate police infrastructure in terms of personnel, transport equipment, and holding facilities, especially in the remoter provinces".
"The absence of systematic or multi-lateral decommissioning and disarmament, the lack of law enforcement, coupled with the war economy, have given rise to banditry and criminality. Insecurity is high on several roads, including on some of the main road links. Road travel has become more dangerous in certain areas, with money being demanded by bandits and by individual commanders through the establishment of checkpoints or ambushes."
At paragraph 5.88, attention is drawn to the report to the UN Security Council of 23 July 2003 where the Secretary General stated that the overall security situation throughout Afghanistan remained fragile and, in many areas, exhibited signs of deterioration. He referred to localised tensions between rival factions in the north having taken a dramatic turn for the worse and makes specific reference to General Dostrum as one of the warlords concerned. As to the position in Kabul, the UNCHR stated in July 2003 that although the security situation there was better than elsewhere because of the presence of ISAF, "certain persons could still be targeted in Kabul, if the persecutors intend to target them".
In May 2004 the European Council on Refugees and Exiles advised that:
"In Kabul, the security and human rights situation has been, to a limited degree, alleviated by the presence of the International Security Assistance Force (ISAF) and by the significant international presence in the capital. However, the Afghan government continues to lack effective control over Kabul, and efforts to create a new national army and police force and to reform the judicial system throughout the country remain at an embryonic stage. It is clear from human rights and other reports that the militia, which carry out the primary policing function in the capital, offer the population no protection from human rights abuses. Beyond Kabul, the absence of an effective system of law and order means that the various power holders can act within impunity. The population at large is thus subject to the arbitrary use of power and the government is not in a position to accord protection from abuses of such power. Allegations continue that communities are often deprived of their basic rights and are victims of serious human rights abuses, sometimes by the police themselves."
"The need for Afghanistan to have a trained and properly equipped national police force is acute, both for, long term estate building and in particular in the context of the upcoming elections. The existing force suffers from a shortage of trained policemen and equipment and weak command and control structures. Efforts to train a national police force have intensified through the operation of five regional training centres nationwide. These are in addition to the German-supported Police Academy and the United States-led Central Training Centre, both in Kabul. To date some 19,500 police have received training Of those trained, some 4000 have received at least one year's training at the Police Academy. The target strength of the force provides for a core of 47.500 national police, 12,500 border police and 2,500 highway police to be reached by the end of 2005. "
We note that this progress has been achieved from a base where, as Amnesty International reported in March 2003, there had been no civilian police force in Afghanistan throughout the last 23 years of armed conflict.
64. It seems to us clear from this general evidence that in a tribal society local family, tribal, cultural and religious networks play an important part in the means by which ordinary citizens achieve some form of security in their lives. Whilst there is a common criminal code and a court system to enforce it, it is also clear that both systems are in their early days of functioning and that they may be ineffective to afford protection against someone in a position of power in the community. Whilst there have been clear advances in the provision of policing, the country has been without a functioning police force prior to the fall of the Taliban for very many years so that the institution and its ethos is having to be built from the beginning. Whilst the general evidence points to a rapid deployment and expansion of the police force, it is clearly still in its early stages and there remain general problems of criminal law enforcement within the new system. In parallel with the new criminal legal system, there is also a functioning civil system although it is considerably handicapped by lack of resources and the effects of having fallen into decay over the preceding period of general unrest within the country. These are, however, general problems, affecting Afghan society as a whole and the issue which we must consider is whether there is any evidence that the state discriminates against its Sikh and Hindu minorities.
65. The tenor of RS's evidence is that the state does not offer practical assistance such as the provision of crematoria, the funds for rebuilding the Gurdwaras and the provision of work and education although he accepts that these communities are free to practice their religions under the Constitution and there is clear evidence that they do so in practice. It is equally clear that there is no discrimination in law in respect of education and that Sikh and Hindu children have the right to education in state schools like any other Afghan citizen. Clearly some do take advantage of their right to state education. Moreover, there is no government objection to the existence of schools specifically for the minority Sikh and Hindu communities. RS makes it clear that many children in those communities do not attend the state schools for fear that they will suffer at the hands of Muslim fellow pupils but that is a matter of societal rather than state discrimination and no examples of such discrimination are given by him in this respect. Indeed the only clear evidence on this point from the Institute for War and Peace Reporting to which we have referred above and, significantly, puts the issue in far less extreme terms than does RS. It is to the effect that although there may be such a fear on the part of the community (and we note it is expressed in terms of teasing rather than physical danger at a number of points in that report), it is not necessarily the predominant factor and in the case of one secondary school in Kabul at least does not in fact exist. His complaint as to lack of provision of work opportunities within the State even taken at its highest does not in our view amount to any evidence of state discrimination in this respect. There is no evidence as to what employment opportunities exist in the public sector or that access to them is determined on a discriminatory basis. Such a complaint must equally be tempered by the reference which he makes to Sikhs engaging in business activity and the access to financial support within their own community both in Afghanistan and abroad. Taking into account that from a refugee law perspective these are in Professor Hathaway's classification (see Chapter 4 of The Law of Refugee Status) mainly complaints about third level rights e.g. work, education and medical care and that there is no sustainable evidence of any discrimination on the part of the State but rather the contrary we do not consider that such matters either individually or cumulatively demonstrate any conduct on the part of the State which is either persecutory or in breach of Article 3 rights. Even taking RS's evidence at its highest there is no evidence of persecution on the part of the State or its emanations. Having carefully reviewed all the evidence before us, the broad submission contended for can succeed, if at all, only on the basis of the behaviour of non-state actors.
66. In this respect, it seems to us that the claims are twofold: first, that the level of societal discrimination against Sikhs and Hindus by the local Muslim population is such that all Sikhs and Hindus in Afghanistan are at real risk of persecution or Article 3 ill-treatment; secondly, that the power of individual warlords or persons of similar local authority is such as to pose a similar risk to these minority communities. The second proposition is clearly unsustainable. It depends upon experiences which are specific to individual members of the communities and as such must be assessed on a case by case basis. There is no evidence of generalised persecution on their part against the minority communities as such. The first proposition is one which really derives from the specific examples given by RS in the June 2004 statement. But, the appellants face considerable obstacles to demonstrating such a generalised risk from the Muslim population. The claims of generalised attack are limited even on RS's evidence. There is the one incident of the bomb being thrown into the Gurdwara but it is not suggested that anyone actually suffered injury on that occasion and it is clearly an isolated event it is likely to be a reference to the incident in October 2003 which resulted in an open letter from Human Rights Watch to President Karzai noted at CIPU paragraph 6.91. There is the complaint of one incident at an intended cremation ceremony where the mourners were confronted by a Muslim mob but, again, this is an isolated event, the state was providing security guards, it is not claimed that anyone was actually injured and the mourners were able to retreat to their Gurdwara where they were safe. Beyond generalised claims by RS and as we have made clear there are reasons to approach his evidence with some caution there are only the eight specific examples in the June 2004 statement. The descriptions of the incidents make it clear that they were opportunistic in nature and suffered at the hands of a very limited number of assailants. No later such incidents have been cited but when he met with Mr Roberts he told him that security in the area in which most Sikhs live in Kabul had improved and that the principal risk was from general criminality, which would clearly apply to the whole population. There is nothing to suggest that any of those assaulted were able to identify their assailants and in the absence of identification it is notorious that there is little more that the police can do. Whilst we note RS's assertion that no action beyond recording the incident has taken place, such complaints are by no means limited to Afghanistan but are frequently a common perception of the victims of opportunistic street crime. The lack of progress in individual cases may equally be the result of the lack of any evidence. Given the structural difficulties faced by the emerging police force in Afghanistan, which must place practical limitations on their ability to follow up complaints of this nature, we are by no means satisfied, even to the lower standard of proof, that the lack of positive results can be ascribed to unwillingness or even indifference on the part of the police to deal with such complaints although we understand this may be the perception of the victims. We note also the accepted increase in security in Kabul referred to above, however it may have come about. Moreover, it is important to consider these few cases in relation to the position of the Sikh and Hindu populations as a whole. The evidence as to the numbers of those populations is contradictory. We do not place any reliance on what RS says in this respect. He has, as noted above, put forward substantially differing estimates. Given their ability to obtain information on the ground from a variety of sources, we consider that the UNHCR estimate is the most reliable which is before us. In July 2003 they estimated there were some 3500 Sikh and Hindu families in Afghanistan (see paragraph 39 above). Assuming, perhaps conservatively, an average of 5 to 6 persons per family, this would suggest that the Sikh and Hindu communities are in total in the region of 20,000 persons of whom a substantial proportion are in Kabul. Against those numbers, the specific cases cited do not support a risk of persecution which is general to the entire community but rather point to the conclusion that they were simply victims of random and opportunistic attacks. For these reasons, having more fully explored the background evidence, we differ from the conclusions of the Tribunal in KK insofar as they may have found a general risk to Sikhs identifiable as such in Kabul. We reaffirm the conclusions expressed in IB and TK that Sikhs and Hindus are not as such at general risk of persecution or treatment in breach of Article 3 rights in Kabul. We are further satisfied, for the reasons which we have given, that this applies generally in Afghanistan. We note that there are significant sections of these communities in other cities and there is no evidence that in general terms their position differs from that of the Sikhs and Hindus in Kabul. There are no reports that any have been killed or tortured because of their religion or ethnicity and the one incident in Kandahar referred to by RS is isolated. There is in our judgment no evidential basis for considering that such communities are generally at risk.
67. We have taken into account in the weight to be given to what he says that RS has been able to travel to and from India apparently at will: in particular, that he makes clear in his statements made in India in February 2005 that he is on holiday there and intends to return to Afghanistan. Such a willingness to return adds to our caution in regarding him as wholly reliable in relation to the severity of the level of discrimination and random physical danger which he claims to exist. We have also taken into account that there is clear evidence that there are Afghan and Sikh families who are returning to Afghanistan, albeit not in great numbers, but that factor also is nevertheless significant in any evaluation of claims that these communities are generically at risk. The information given by RS to Mr Roberts which was not apparent from any of his three preceding reports has also been taken into account by us. It confirms the Tribunal's earlier concerns that his evidence, as being directly in support of the Sikh and Hindu asylum claimants' causes, needed to be approached with some caution. We are satisfied that the information given to Mr Roberts does suggest that we must regard his evidence as generally seeking to put the case of discrimination against Sikhs and Hindus at its highest and, specifically, failing to give due weight to the clear evidence of improvement as the Afghanistan Government establishes itself in the wake of a long period of civic unrest. We are satisfied that there is no question of state persecution and that some steps are being actively taken to deal with societal non-state actor discrimination on the part of members of the Muslim population. The provision of security guards at cremations is of particular significance in this respect in our view. As was said in IB and TK, there is no reason to doubt that life for members of the Sikh and Hindu communities in Afghanistan may be difficult and frequently unpleasant but, looking at all the evidence in the round, the levels of discrimination which these communities suffer are not such as to give rise to a general need for protection. As the UNHCR advises, each case must be approached with care on its own merits, bearing in mind that the Sikh and Hindu minorities are subject to societal discrimination.
Findings in Relation to Mr L
The Appeal of Mr T
The Appeal of Mr S
Summary of findings
List of background materials placed before the Tribunal
CIPU Country Report for Afghanistan of October 2004
USSD Report on Afghanistan for 2003 published in February 2004
UN General Assembly Security Council Report of 12 August 2003
European Council on Refugees and Exiles (ECRE) Report of April 2003
Human Rights Watch Report of July 2003, Vol 15 No. 5(c) pp 70-88 denial of basic freedoms to women and girls
Human Rights Watch Essential Background Overview of human rights issues in Afghanistan of 31 December 2003
Human Rights Watch report of January 2004 Losing the peace in Afghanistan
Amnesty International press releases of 28 April 2003 (Forced Return) and 23 June 2003 (Afghanistan still not safe enough)
Religioscope Report of 28 January 2003 Afghanistan: Hindus still face prejudice
Statements of RS dated 3 December 2003, 23 April 2004, 14 June 2004, 9 February 2005 and 25 February 2005
Statements of Mr Roberts dated 13 December 2004 and 1 February 2005