Naseer, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 1671 (Admin)

Case No CO/9814/2005[2006] EWHC 1671 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 21 June 2006
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF ASIF NASEERClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR TU COORAY (instructed by Thompson & Co) appeared for CLAIMANTMISS SAMANTHA BROADFOOT (instructed by Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: This is a claim for judicial review of the decision by the Secretary of State, refusing to treat further representations made on the claimant's behalf as a fresh asylum claim or a fresh human rights claim. That decision was made on 23 November of last year.[2]The claimant is an Ahmadi Muslim from Pakistan. He arrived in this country in September 2004 and claimed asylum. His claim was rejected by the Secretary of State on 18 November 2004 and he appealed to the Tribunal. His appeal was heard by an immigration judge, Mr Charles Blake, on 14 June 2005 and was rejected. It is important in the context of the facts of this case to note that the immigration judge did not believe the account given by the claimant of what had led him to seek asylum and to flee Pakistan.[3]Briefly, what he said was as follows. He was born in 1918 and his father had converted to the Ahmadi faith in 1975. His mother was an Ahmadi by birth. When he was at college he had friends with whom he discussed the Ahmadi faith, and one of those friends to whom he showed material passed it on to another Sunni Muslim, whose uncle was a Mullah and this led to his friend getting into difficulties. In the second week of January 2002, the claimant said that five Mullahs of an organisation known as Khatme Nabuwaat attacked him when he was on his way home from college, indicating that he should be taught a lesson. He said he lost consciousness and was taken to hospital. Police merely laughed at him when he sought to report that incident. His activities in the community increased. He attended a medical camp in a neighbouring village in August 2003, and was introduced to someone who himself became interested in the Ahmadi faith and who accompanied him on a trip to Rabwah, which is where a significant number of Ahmadis live and where their religion has its headquarters.[4]In January 2004, his friend having reported to his parents that he had been to Rabwah, a number of people, including Mullahs, attacked his home. He managed to escape by leaving from the back of the house. His father, when told, advised him to move away. He went to stay with a friend for some days, but in April the friend informed him that the Mullahs were still looking for him and had visited the friend's home. In July, when he was on his way to pray in the mosque, he said that his paternal uncle happened to see him, recognised him, and began shouting that he was the infidel son of an infidel father. A few days later he was informed that an FIR had been registered against him for preaching the Ahmadi faith. He was advised as a result of that that he should leave Pakistan, and he did so, arriving in London in September 2004.[5]That was the account that he gave. That was the account that was analysed by the immigration judge. He accepted, and indeed there is no dispute, that the claimant is an adherent to the Ahmadi faith, and he had produced to the immigration judge a letter from the Ahmadiyya Association in the United Kingdom confirming that that was the case. The letter went no further than that because there had not been time, it was said, to investigate the matter any further.[6]The immigration judge did not accept the account given as to how the claimant had come to the attention of a Mullah, namely by a copy of a book which he had given to a friend being passed on, and he expressly rejected that account, partly on the basis, as he sets out in paragraph 32 of the determination, of embellishments to the account that were given in the course of evidence.[7]He rejected the account of what had happened in January 2002, indicating quite apart from anything else that he would have expected some sort of hospital report if the claimant had indeed been rendered unconscious and had to stay in hospital for some time.[8]He then dealt with the 2004 incident following the visit with a friend to Rabwah. There were, as the immigration judge pointed out, contradictions, embellishments and incoherent aspects of the account that he gave, so the immigration judge rejected it. Equally, he did not believe the account given of the attack on the home in January 2004, and the alleged escape through the back door.[9]Finally, he rejected the account of the attack by the paternal uncle, again relying upon incredible aspects of that story. He stated in paragraph 38 as follows:
"The FIR that the appellant claimed had been issued on the report of the Khatme Nabuwaat Mullahs was not shown to the respondent or to me. The appellant will no doubt say that it is not possible to obtain copies of FIRs that have been issued but the fact is that in very many cases involving Ahmadis such documents have been presented to me and have formed an important part of the case based on discrimination amounting to persecution."
[10]He then went on to refer to the claimant's evidence that he had restricted his preaching to occasions when he had been at medical camps, assisting in that respect. He said that he was accompanied by a group of Ahmadis for his protection whenever he did preach in public, but he did not rely on specifically preaching in public as an aspect of his claim. Indeed, it was based upon the incidents to which I have referred, and which for reasons which will become apparent, it is important to emphasise and identify.[11]In paragraphs 40 and 41 of the determination the immigration judge decided that any difficulty that he had had with Mullahs was not occasioned by public preaching, and he went on:
"As I have [rejected] the appellant's entire account of events, I must also find that it was not occasioned by the number of times on which he said he had preached (using this word in the sense that I further elucidated it above) to friends of his or those who were interested or had become interested in the Ahmadi faith. I do not believe that he did any of these things. I also reject his account of his escape [from the house in January 2004]. I agree with the respondent in this regard and I do not think that the appellant has satisfactorily answered the points made against him in his statement prepared for the appeal. I also reject his account of events that occurred in Lahore [that was recognition by his uncle]. I think this is a fabrication to support an assertion that he endeavoured to relocate elsewhere in Pakistan and was not able to do so. 41. My overall conclusion is that this entire account of events is a fabrication and the appellant has not had any more difficulty in Pakistan than has any other Ahmadi who might on occasion have spoken to friends about his religious beliefs. I do not take such activity to amount to the type of public preaching that would excite the interest of Khatme Nabuwaat extremists. I entirely accept that such extremists exist and are on the lookout for Ahmadis who proselytise in public. I find that the appellant has never done so."
[12]I have gone through the immigration judge's findings in some detail because they are highly material background to the issues that are raised before me in connection with the alleged fresh claim.[13]That claim is largely dependent upon two matters. First, there has been produced a letter from the Ahmadiyya Association in this country dated 6 November 2005, which reads as follows:
"This is to confirm that the person whose details are set out below is an Ahmadi by birth and a bona fide member of the Ahmadiyya Muslim Association. According to the information received from our headquarters in Pakistan his participation in congregational prayers, conduct and contact with the Jamaat (branch) were good and he used to take part actively in its activities. He served in our Sangla Hill-Pakistan branch as 1. an Assistant Guide for Youngsters from 2002 to 2004 and 2. an Organiser for General Fitness Programmes. He used to perform his duties efficiently during preaching tours conducted by the in charge of the local area."
[14]Mr Cooray links that to the claimant's own statement which was before the immigration judge, in which he says, and indeed this is something that was referred to specifically by the immigration judge:
"In September 2002, I was appointed as member of the Dai Allah group (a preaching group) of Khudam-ul-Ahmadiyya (a youth organisation). To this end, [we] used to conduct free medical camps and then in the follow up we (the members of the preaching group) visited the same area."
[15]It is submitted that that indicates that the claimant was indeed involved in preaching, and this throws considerable doubt upon the correctness of the immigration judge's rejection of his account of being one who preached and who therefore actively proselytised on behalf of Ahmadis. It is reading quite a lot into that document to take it as far as Mr Cooray submits it should be taken, because what it does not say is that he sought to preach to those who were not already Ahmadis and that he was seeking by his preaching to proselytise. It does not in any way support the accounts that the claimant had given and which were rejected by the immigration judge. However, it does give some support to the contention that the claimant was not only an Ahmadi but, if this is a proper way of describing it, an active Ahmadi in Pakistan.[16]In addition to that, there was produced an FIR. This was said to have come from his brother. It is a curious document. It is dated 4 August 2005, which was almost a year after the claimant had left Pakistan. It records a complaint that the claimant had been responsible in August 2005 for pasting pamphlets on walls and preaching the Ahmadi religion.[17]It is also asserted that he was responsible, together with others, for kidnapping the complainant's son at gun point and carrying him off to an unknown place. There was also produced what was said to be an arrest warrant, which is dated 2 September 2005 and purports to record that the police are required to apprehend the claimant and bring him before the court, he being accused under section 295-C 146-364 of the Pakistan Penal Code. I have not been told what that relates to. Perhaps it matters not, the fact is that it is an arrest warrant for an alleged offence, but again in September 2005.[18]That is supported by a very recent statement, served I think yesterday, from a gentleman called Mr Shahid Tabassum, who is, according to the headed paper on which the statement appears, an advocate of the High Court in Pakistan. He describes how on 5 March he visited the police station in Sangla Hill, asked to be shown the FIR register and discovered the FIR to which I have already referred dated 6 August 2005. He states that the police officer in charge confirmed the case was live and that they were pursuing the culprits but without success, which is hardly surprising since the alleged culprit had for the last year or so been in this country.[19]Of course, the FIR is nonsense, but that, I recognise, does not of itself mean that it is necessarily false. But there is something of some importance which comes from Mr Tabassum's statement, and that is that it seems clear that an advocate at least is entitled to ask for, and to see if he has good reason, the register of FIRs at a police station. It is significant that there has not been produced a copy of the August 2004 FIR upon which the claimant relied, inasmuch as it was that which was largely the trigger which led him to leave Pakistan, fearing, as he said, that he was to be persecuted and ill-treated by the Mullahs.[20]The Secretary of State rejected the application. He took the view that the FIR was unreliable because he knew that such documents were easily obtainable in Pakistan, and it was not necessarily the case that they were genuine in the sense that they reflected a real FIR or indeed a real arrest warrant, because the same principle applied to arrest warrants. He took the view that the letter from the Ahmadiyya Association in the United Kingdom really did no more than confirm that the claimant was indeed a genuine Ahmadi. Thus, it did not produce the situation which showed that there was a reasonable prospect that the claim would succeed if it were put before an immigration judge were the Secretary of State to reject it.[21]The relevant rule under which these so-called fresh claims have to be considered is now Rule 353 of the Immigration Rules. That reads:
"353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."
[22]So the question is, when dealing with what is said to be fresh evidence, whether that evidence is such that, even though the Secretary of State rejects the claim, it can be regarded as creating a realistic prospect of success were there to be an appeal against the rejection. It is obviously right that the Secretary of State, in considering the evidence that is produced, should be able to form a view as to its reliability and the starting point in a case such as this, where there has been a rejection by the appellate authorities of a claimant's account that he has been disbelieved, is the decision of the AIT. That by itself will not mean that anything that he thereafter states or puts forward must equally be disbelieved, but it is proper for the Secretary of State to take that into account in assessing whether the fresh material is indeed such as will provide a realistic prospect of success.[23]He knows, and the appellate authority has confirmed, that documents which appear to come from official sources in some countries, including Pakistan, can be obtained by bribery or other means and are not necessarily to be taken at face value. The Tribunal decided that as long ago as February 2002 in the starred decision of Tanveer Ahmed v Secretary of State [2002] UKIAT OO439. That was a decision of the Tribunal, presided over by myself when I was President. What the Tribunal said in that at paragraph 31 was this: "31. It is trite immigration and asylum law that we must not judge what is or is not likely to happen in other countries by reference to our perception of what is normal within the United Kingdom. The principle applies as much to documents as to any other form of evidence. We know from experience and country information that there are countries where it is easy and often relatively inexpensive to obtain 'forged' documents. Some of them are false in that they are not made by whoever purports to be the author and the information they contain is wholly or partially untrue. Some are 'genuine' to the extent that they emanate from a proper source, in the proper form, on the proper paper, with the proper seals, but the information they contain is wholly or partially untrue. Examples are birth, death and marriage certificates from certain countries, which can be obtained from the proper source for a 'fee', but contain information which is wholly or partially untrue. The permutations of truth, untruth, validity and 'genuineness' are enormous. At its simplest we need to differentiate between form and content; that is whether a document is properly issued by the purported author and whether the contents are true. They are separate questions. It is a dangerous oversimplification merely to ask whether a document is 'forged' or even 'not genuine'. It is necessary to shake off any preconception that official looking documents are genuine, based on experience of documents in the United Kingdom, and to approach them with an open mind. It is to be noted that the case of Tanveer Ahmed in fact concerned an FIR and an arrest warrant from Pakistan.[24]Again, the fact that it is easy to obtain such documents, and they may look genuine but may well not be, is not something which can be assumed in every case. It is necessary, as Tanveer Ahmed itself indicated, to look at all the evidence in the round and to look at the whole case.[25]What is the situation here? The claimant's account of the specific incidents which he relied on was rejected. He had not told the truth according to the immigration judge in respect of those incidents. In addition, the immigration judge indicated that he was holding against the claimant that there was no production of the FIR of August 2004. He did not need to deal expressly with the evidence that was given by the claimant in relation to medical camps and assisting in that respect and going on the preaching tours, because he rejected the account that he had been targeted in any way by the Mullahs as a result of his activities on behalf of Ahmadis. But it may be that it can be said that, at least by implication, he rejected any account of proselytising.[26]The letter from the Ahmadiyya Association does not, in my view, go so far as to support the suggestion that he was indeed involved in proselytising, nor does it throw any doubt upon the correctness of the immigration judge's findings in respect of the incidents upon which the claimant relied to justify his claim to asylum.[27]That being so, the defendant was entitled to find that, on the whole of the evidence, this particular claimant had not been persecuted and had not suffered the degree of ill-treatment that would require that he be allowed to remain in this country, whether under the Refugee Convention or the European Convention on Human Rights.[28]The FIR and the arrest warrant are now produced in an attempt to show that he is indeed still the subject of adverse attention from the Mullahs and indeed the authorities. That is the purpose for which these documents are produced. Of course, if they are genuine, they do tend to support the contention that he may be at some risk if he is returned. So their genuineness is a matter of some importance. The Secretary of State has rejected them.[29]In my view, he was entitled to do so for these reasons. First of all, they are curious documents in themselves because they relate to alleged incidents a year after the claimant had left Pakistan. I accept, as Mr Cooray submits, that reports may be made which are dishonest and false. But it is very useful to the claimant's case that suddenly there are produced this FIR and this arrest warrant which is said to show that he is indeed at risk. True it is said: well, they could not have been produced before because they only came into existence in August 2005 after the hearing before the immigration judge. But it is rather extraordinary that they should have come into existence when, as we know, the contents simply could not be true. How they came into existence we do not know, and indeed how they were obtained by his brother we do not know. It is a little strange that his brother was apparently unable to obtain copies of the all important FIR in August 2004 and yet was apparently able to get a copy of this FIR in August 2005.[30]I note the evidence of the advocate who says that it is recorded in the register. But bribery will achieve a lot, and bribery is not all necessarily one way. It is equally possible that the police have been bribed to produce this false FIR in order to support the claim made by this claimant that he should be allowed to stay in this country. That, it may be said, is to a degree speculation, and so I recognise it is, but it just shows that there are many reasons why a document such as this could have come into existence and reasons to doubt its genuineness.[31]In all the circumstances, this is a case in which, in my view, the Secretary of State was fully entitled to say to himself: 'I have had no proper explanation of how these documents came into existence. I note how useful they suddenly are, produced at this late stage. I note too that there has still been no production of the August 2004 FIR. In all those circumstances, I take the view that I am entitled to reject the genuineness of these documents and to take the view that there is no real prospect of success'.[32]Against that, there has been raised, and certainly was in the claim as set out in writing, a decision of mine in Rahimi v Secretary of State [2005] EWHC 2838 (Admin). I refer to it only because I am aware that it has been relied on in a number of cases since. I am equally aware that the Secretary of State is unhappy with it and is seeking to appeal, and indeed has leave to appeal and I am told the appeal is due to be heard some time in the Autumn. That was a case in which there had equally been a rejection of the account given by the claimant. It was a case involving Afghanistan and it was based upon his assertion that he had worked for the Taliban, although not willingly, and as a result he was being targeted by an extremist organisation which was concerned to root out and to deal with any who had been involved with the Taliban.[33]What he relied on in that case was a newspaper article, which referred to him and I think his father, and which indicated that he was indeed being sought. There was evidence that, if he was a target of this particular organisation, then there would not be an ability by the authorities in Afghanistan to provide him with the necessary protection. He also had a statement from an expert, a Dr Antonio Giustozzi, and that expert had examined the original newspaper, and from his knowledge of that paper and of the situation in Afghanistan expressed the opinion that it could well be genuine. I should say that the expert in question was a respected expert, and one who was able, because of his expertise, to give credible evidence as to the authenticity of that particular document. So one had in that case an explanation and detailed evidence which supported the genuineness of the document upon which Mr Rahimi was relying. That is totally absent in this case.[34]Furthermore, as I indicated in the course of my judgment, the newspaper article, if it was genuine, was central to the claim, because if it was right, it showed beyond any question that there was likely to be a real risk for Mr Rahimi were he to be returned to Afghanistan. Accordingly, its genuineness was central. Since there was the evidence of the expert, and since it meant that the new claim would have a realistic prospect of succeeding on appeal before an immigration judge, it seemed to me that the Secretary of State had no good reason to reject it or to treat it as evidence which he would not rely on and thus would not accept as showing a fresh claim.[35]I relied upon observations of Sedley J in ex parte Habibi and the approval of that decision by the Court of Appeal in Beybeyi, both cases being reported in [1997] Imm App R at pages 391 and 491 respectively. It is to be noted that I made it clear that that was the basis, namely that this was central, that led to my decision. If I may repeat what I said in paragraph 18:
"I think it would be difficult to justify an approach which enabled the Secretary of State to find a matter of fact against a new claim which otherwise would succeed because the material had not already been considered; and there was good reason, as it happens in this case, for that, because it did not exist until after the relevant decision of the adjudicator."
[36]The key words are:
"which otherwise would succeed", and that means, of course, would succeed within the terms of Rule 353. However, I went on to say this in paragraph 19: "
Of course, if it is intrinsically incredible, or if when one looks at the whole of the case, it is possible to say that no person could reasonably believe this evidence, it should be rejected. If it is, on the face of it, credible and if, despite the feeling that it might be disbelieved, it is not possible to say that it could not reasonably be believed, then, as it seems to me, the decision ought to be based upon that state of affairs. The Secretary of State would be wrong to say 'I don't believe it and therefore I am not going to regard this as a fresh claim'."[37]It seems to me, on consideration and having regard to the circumstances of a case such as this, that that taken in isolation may indicate too strict a test. As I have said in the context of this case, if the Secretary of State reasonably on the material before him takes the view that it is not evidence which could be accepted, and thus would not give a reasonable prospect of success on appeal, he is entitled so to find. What is important in circumstances such as this is that there should be evidence indicating how the relevant documents came into existence and supporting their genuineness.[38]For the reasons that I have indicated in the circumstances of this case, the Secretary of State was, in my judgment, entirely right and indeed acted wholly reasonably in deciding that the particular documents that are now relied on did not and could not advance the claimant's case. It was not perhaps because they were intrinsically incredible that that was the case; it is because it can properly be said that no person could reasonably believe this evidence. The test perhaps should be more accurately stated thus: if the Secretary of State was entitled because of an adverse decision of an immigration judge to say reasonably he did not believe the evidence, then the fresh claim can be rejected.[39]But having said all that, it is important that the Secretary of State should have good reason for indicating that he does not accept any material which is relied on and which was not before the immigration judge. The Tribunal case of Devaseelan [2002] UKIAT 00702 concerned the correct approach of adjudicators where there had been a previous decision on asylum and there was a subsequent claim for human rights based upon much the same sort of material. Devaseelan makes clear, and in my view the approach is relevant in relation to fresh claims, that where the so-called fresh material could have been put before the previous adjudicator, then the adjudicator dealing with the subsequent claim is entitled to be highly sceptical of such material and to look at it with care and in the light of knowledge of the reliability -- or unreliability perhaps -- of such documents, and is entitled and indeed bound to consider carefully any material, if there is any, which supports their validity.[40]It would be very easy to reject them if there is no such evidence. That is the position here. There is nothing that is produced which in any way independently supports the validity of these documents. When I say validity, I mean not necessarily that they are not genuine FIRs in the sense that they emanate from the police station, but that their contents can be in any way relied on. Indeed, all the material points in the other direction and there is nothing in what is produced that throws any real doubt upon the correctness of the findings of the immigration judge in relation to the account which the claimant gave him.[41]In all those circumstances, in my judgment, this claim must fail and therefore it is dismissed.[42]MISS BROADFOOT: I am grateful, my Lord. I have no applications.[43]MR COORAY: My Lord, may I ask for a detailed assessment?

MR JUSTICE COLLINS: Certainly.

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