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QUEEN and IMMIGRATION APPEAL TRIBUNAL ex parte BASHIR LAL [2000] EWHC Admin 420 (20th November, 2000)
IN THE HIGH COURT OF JUSTICE
CO/1890/00
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand,
London WC2A 2LL
Monday 20 November 2000
Before:
MR. JUSTICE CRANE
BETWEEN:
THE QUEEN
and
IMMIGRATION APPEAL TRIBUNAL
ex parte BASHIR LAL
__________________________________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
___________________________________________
Mr.R.Ghaffar appeared for the Claimant.
Miss J.Anderson appeared for the Defendant.
___________________________________________
Judgment
As Approved by the Court
Crown Copyright ©
1. This is an application for judicial review of the decision of the
Immigration Appeal Tribunal dated 25 February 2000 to refuse leave to appeal
against a decision of the Special Adjudicator dated 26 January 2000. The
Special Adjudicator had dismissed the Claimant's appeal against a decision of
the Secretary of State on 8 October 1999 to give directions for the Claimant's
removal after the refusal to grant her asylum.
2. Permission to apply for judicial review was granted by Turner J. on 12 July
2000. He observed:
"There is little to indicate that the Immigration Appeal Tribunal engaged in a
serious manner with the grounds of appeal. That said, it is true that the
basis of the claim depends on the incident in 1994 but in the light of current
conditions in Pakistan which were not considered by the Tribunal at all".
3. The Claimant is 53, a citizen of Pakistan. She was born and brought up in
Pakistan as a Christian, a minority religion. She and her husband left
Pakistan in 1974 to live in Libya, visiting Pakistan every two years. She
visited Pakistan with her husband in December 1994. While she was there an
incident took place which I shall describe further. She did not thereafter
return to Pakistan. Her husband's job contract in Libya expired in 1998. She
and her husband arrived in the United Kingdom on 12 November 1998 for the
purpose of seeking asylum, but actually applied for asylum on 1 December 1998.
By letter dated 19 August 1999 the Secretary of State refused her application.
4. The Claimant describes herself as a "Born again Christian" of the
Pentecostal faith. She considers that she has the gift of prayer and healing.
She carried out evangelical work in Libya. Her name would in Pakistan identify
her as a Christian.
5. The incident in December 1994 requires elaboration. While in Sahiwal in
Pakistan she attended a prayer session at a Christian family's home in the
course of her evangelical work. A small group of Muslims entered and she was
questioned about whether she believed in the prophet Mohammed. They wanted to
attack and beat her, but she and her husband were able to escape. She had
feared for her safety. She and her husband left Pakistan not long
afterwards.
6. The Special Adjudicator did not accept certain parts of her evidence and
noted that she had misled the immigration officer on entry, but the facts I
have outlined so far were all found by him. He went on:
"Her claim however arises in the main from one incident. That was over five
years ago and arose not by reason of being sought out by the Muslims but the
[sic] reason of an accidental encounter. Tempers were obviously raised and I
accept that the appellant had to flee the area and eventually I accept her
reasons for leaving the country.
The appellant has never experienced any personal difficulties from the
Pakistani authorities. She has been able to enter and leave the country on a
number of occasions on her own passport and there is no suggestion that she has
ever suffered at the hands of the authorities.
I accept from the background information that Christians in Pakistan are a very
small minority and have been affected by the increase in power of Islamic
Fundamentalists. Here has recently been a change in government but I have no
information on how that change has affected the position of Christians. I
considered it unlikely to have adversely affected the situation regarding
Christians.
I have considered whether or not the small group of Muslims who were involved
in the incident could be regarded as agents of persecution. The appellant made
no claim for police protection and I am therefore unable to gauge whether or
not the authorities would have been able to give effective protection. In any
event I consider that [sic] the situation to have been an isolated incident
several years ago.
I am satisfied that Christians as a body are not persecuted in Pakistan to the
extent required by the Convention. I have noted the reference to "persecution"
in the Handbook. I consider that the appellant could return to Pakistan albeit
to another area. The fact that she is a practising Christian with a
recognisable name would not cause her difficulties. She has a valid passport
and would not suffer problems upon re-entry.
The appellant has not discharged the burden imposed upon her to the required
standard. She does not have a current well-founded fear of persecution in
Pakistan for a Convention reason."
7. The Chairman of the Tribunal, having recited the history of the application,
continued:
"The adjudicator heard oral evidence from the applicant. He did not accept
that she would stand out in Pakistan and her fears were based on a single
incident five years before. In these circumstances he concluded that she would
not be at risk on return.
The adjudicator appears to have considered all the evidence before him,
properly directing himself as to the proper standard of proof. The adjudicator
came to clear findings of fact, after giving to each element in the evidence
the weight he considered appropriate.
The Tribunal has studied the papers on file. It considers that the conclusions
of the adjudicator are fully supported by the evidence, bearing in mind his
assessment of the witness he heard and the adjudicator's assessment of the oral
evidence. There is no misdirection in law. Read as a whole the determination
is a full, fair and reasoned review of the applicant's case.
In the opinion of the Tribunal this is not a proper case in which to grant
leave, and such leave is refused".
8. In granting permission Turner J. in effect criticised the adequacy of the
reasons given by the Tribunal. They were for the most part formulaic. I am
told by counsel for the Respondent that judicial attitudes to formulaic reasons
have varied. She has referred me to decisions of Auld J. in R. v.
Immigration Appeal Tribunal, ex p. Mehmet Yaziki, 5 October 1994
(transcript) (CO/2563/94) and Moses J. in R. v. Secretary of State for the
Home Department, ex p. Thiruchchelvam, 23 October 1998 (transcript)
(CO/3091/97). I accept that formulaic reasons are not necessarily
inappropriate. I adopt the words of Moses J. (at page 8F:
"... the vital consideration is whether the reasoning of the tribunal in
refusing leave is so unfitted to the grounds that it gives rise to a reasonable
inference that the tribunal did not approach the appeal with the care such
cases demand."
If formulaic reasons are given, the court must inevitably look at the grounds
and compare the determinations and reasons of the Special Adjudicator. If the
grounds are cogent, the use of formulaic reasons may point to a conclusion that
the grounds did not receive sufficient consideration.
9. The Claimant had to show before the Special Adjudicator a real likelihood
not only that she feared persecution in a Convention sense (as the Special
Adjudicator appears to have found that she did), but that such fear was well
founded. The test is set high. If she had a well-founded fear, the issue of
internal flight could arise. The sufficiency of state protection is relevant
in considering both the "fear" test and the "protection" test: Horvath v.
Secretary of State for the Home Department [2000] INLR 15.
10. I bear in mind the words of Lord Bingham M.R. in R. v. Immigration
Appeal Tribunal, ex parte Sahota [1995] Imm.A.R. 500 at 506:
"The present field in one in which it is tempting for the court to stray into
taking its own view of the facts. That is a temptation which the court must
resist. A court's function is limited to a review of the challenged decision
on one or more of the familiar grounds".
11. The Special Adjudicator had extensive background information before him
about the treatment of Christians in Pakistan. It was for him, not for this
court, to assess that information. His conclusion that Christians as a body
are not persecuted in Pakistan is not assailable. The real issues therefore
were, first, whether the Claimant as an individual Christian had a well-founded
fear of persecution, not, in view of his findings, by the Pakistan authorities,
but by non-state agents. If she had, the sufficiency of state protection would
arise.
12. The grounds of appeal were in five sections. The Tribunal was right not to
be impressed by all of them, but some can be identified as deserving attention.
I put them in a logical order.
13. First, although the finding that Christians as a body are not persecuted in
Pakistan is not assailable, it was pointed out under ground (ii) that the
Appellant was a known Christian and prominent healer. That is putting the
evidence too high, but the Special Adjudicator had accepted that she was
engaged in evangelical work and that the 1994 incident arose from the holding
of a prayer meeting. This acceptance is alleged to sit ill with his
conclusions:
"The appellant also indicates that she would be known throughout Pakistan as a
Christian. There is an inference that her work within the Christian faith
would make her stand out beyond the average Christian and single her out for
special attention. Again I do not accept that part of the appellant's story.
I accept that her name would identify her as a Christian but beyond that the
appellant's situation would be that of a Christian in Pakistan. She worked as
a health visitor in Libya and it is hard to differentiate between that work and
the "spiritual healing" that she claims to have been involved in".
14. Secondly, also under (ii) the Special Adjudicator's description of the 1994
incident as "an isolated incident several years ago", when in fact the Claimant
had not thereafter returned to Pakistan for reasons which he accepted. It was
further contended under (ii) that the Special Adjudicator had in these
circumstances unduly regarded past "persecution" as determinative of future
risk. He should have considered the serious possibility of future
persecution.
15. Thirdly, although in my view the finding that the group of Muslims were not
agents of persecution was not assailable and he understandably could not gauge
whether the authorities would have been able to given protection in 1994, under
(ii) and (v) complaint was made that the Special Adjudicator did not consider
whether in the light of the information about developments since 1994.
16. Fourthly, under (i) it was pointed out that the issue of internal flight
had not been raised by the Secretary of State (and indeed I note that it had
not apparently been raised before the Special Adjudicator). Yet he said "I
consider that the Appellant could return to Pakistan albeit to another area".
The grounds wrongly go on to say that no finding was made as to whether the
Appellant had a well-founded fear of persecution in Pakistan or not, but
nevertheless the grounds raise a serious point.
17. In my judgement, in the light of the first three areas of criticism that I
have set out, the Special Adjudicator's conclusions can properly be described
as irrational. He concluded that the fact that the Claimant is a practising
Christian with a recognisable name would not cause her problems. Yet he had
accepted the evidence of the 1994 incident as arising from the holding of a
prayer meeting. He had evidence that the Claimant was not someone who would
simply practise her religion in private. He was entitled to find that the
Claimant was much less well known that she contended, but he failed to address
the question whether she would call attention to herself in the way she did in
1994. In treating the 1994 incident as isolated, he gave no real attention to
the fact that the Claimant had not visited Pakistan since and to the increase
in the power of Islamic Fundamentalists and its effect on Christians in the
intervening period of five years. Similarly, in considering the protection
issue, he focussed on whether such protection would have been available in
1994, without proper consideration of the issue now. In short, he did not
focus on the crucial questions: if the Claimant returned, would such an
incident be likely to arise again in the light of this particular Claimant's
beliefs and of the current situation and, if it did, what protection would be
afforded?
18. The fourth area of criticism is the most serious. While the Special
Adjudicator made a finding that the Claimant did not have a current
well-founded fear of persecution, but he said "I consider that the appellant
could return to Pakistan albeit to another area". This implies that she could
not return to what appears to be her home area, in the sense that that is where
her relatives live. Yet the question of internal flight had not been raised at
any stage, let alone explored. The Respondent's counsel conceded that it was
not for the Claimant to raise that possibility. The Respondent's counsel
submitted that the reference to another area simply referred to the Claimant's
subjective fear, not to the question whether her fear was well founded. I do
not find that submission convincing. The sentence is simply inconsistent with
the Special Adjudicator's main finding. Even if my conclusions set out in the
previous paragraph were wrong, the determination would in my view be plainly
irrational in the light of this inconsistency.
19. The Tribunal decision makes no direct reference to the contents of the
grounds. It does not address the irrationality of the determination in either
respect. I am driven to the conclusion that the Tribunal cannot have given
proper consideration to the irrationality of the Special Adjudicator's decision
and that its refusal to grant leave must be quashed.
© 2000 Crown Copyright
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