Neutral Citation Number: [2006] EWHC 2139 (Admin)
Case No: CO4490/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/08/2006

Before :

MR JUSTICE BEAN
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Between :

	R (Abdul Wali Mohamed KHAIL) 	Claimant	
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	SSHD	Defendant	

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Mr Satvinder Singh Juss (instructed by Immigration Advisory Service) for the Claimant
Mr Vikram Sachdeva (instructed by Treasury Solicitor) for the Defendant

Hearing date: 11th August 2006
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Judgment 

Mr Justice Bean : 
1.	The Claimant is a citizen of Afghanistan of Pashtun ethnic origin.   He entered the UK on the 9th May 2002 and claimed asylum the following day.  The asylum claim was rejected by the Home Secretary on 8th July 2002.  The Claimant’s appeal was heard by an Adjudicator, Mr Pullig.  The Claimant’s case was that he was born and brought up in Badgis in the north west of Afghanistan.  When the Taliban were in power they forced the Claimant’s eldest brother to fight at the front.  When the Northern Alliance and the Uzbeks defeated the Taliban in November 2001 Pashtuns who had fought for the Taliban, together with their families, were at risk.  One night the Claimant’s brother was shot and killed in his home village by a party of Uzbeks.  The Appellant escaped from the village and in due course from the country. The Adjudicator found as follows:-
“31	I find the appellant’s account of events that took place     to be entirely credible.  There was ample opportunity for him to embellish his account which he did not do.  His account has been consistent throughout and his evidence before me consistent with his earlier accounts.  All the evidence is consistent with the background material.
32	However I do not accept that it follows that what he now fears on return meets the standard of proof under the Refugee Convention or the Human Rights Convention.
33	Without a doubt the situation in Afghanistan is precarious and this is not surprising given its history both recent and over the course of many generations.  The fragmentation of political power, the rivalry among warlords and the different ethnic and other groupings render it almost inevitable.  I am sure no one in the international community underestimates the colossal task ahead of both it, and the present regime, in attempting to produce a degree of cohesion and political and social stability.
34	Likewise in a country that has become brutalised it is very likely that in some areas where existing or previous rivalries, grudges and vendettas may seek to bring about revenge upon the Pashtoons for their involvement with the Taliban such would involve a degree of violence and brutality quite severe [sic].  However the international Conventions were not designed to protect individuals from inadequacies within their systems of law and order where, despite those inadequacies, they were willing and able to protect individuals from either persecution under the Refugee Convention or those matters prohibited by Articles 2 and 3 of the Human Rights Convention.
35	There is no evidence that the appellant himself or indeed his family were directly targeted by anyone because the appellant was a Pashtoon.  He sent his family from the village and subsequently left it himself because of the violence that was then being perpetrated generally.  He said that those concerned were “firing on the village”.
36	Although the appellant’s brother may well have been known, if only as the son of his father, nonetheless there is no evidence that that would in any way draw particular attention to the appellant himself.  Indeed the appellant’s elder brother was not a willing member of the Taliban but forced to join them and fight on the front as so many were.
37	The only basis upon which the appellant may be able to sustain any claim is simply because of his ethnicity.  Given that the Pashtoon are 38% of the population [and] are well represented in the government and in many regions at a local level, were the appellant to return to his own part of Afghanistan and face difficulties there is no reason for him not to move to another part where the Pashtoon are in the majority.  This applies to the position under both conventions.
38	The appellant suggests that he would have difficulty moving from province to province.  The background evidence does not support that.  Indeed the appellant did move from one part of his area to an adjacent area and there is no reason to believe that he could not do so again.
39	Whilst there is a risk of ethnic violence in some parts of Afghanistan there is no reason to believe that this appellant would face persecution or treatment contrary to Article 3 in circumstances where he could not avail himself, by moving elsewhere, of the protection of the state.  Whatever the shortcomings may be in that protection in some parts of the country it is certainly available in Kabul and in other places with the support of the international community.
40	Accordingly I find that the appellant has not discharged the burden upon him and thus has not satisfied me that he has a well-founded fear of persecution under the Refugee Convention or that there is a real risk that his rights would be violated under Articles 2 and 3 of the Human Rights Convention.
41	Decision
		For the reasons given above I dismiss this appeal.”

2.	By a decision of 5th December 2002 a Vice President of the Immigration and Asylum Tribunal refused permission to appeal on the grounds that no error of law was to be found in the Determination.  There was no application for judicial review. 
3.	By letter of 22nd April 2003 the Claimant’s solicitors made further representations, to which there appears to have been no reply. Two years later, on 16th May 2005, further representations were made.  By a decision letter of 20th June 2005 the Home Office rejected the representations as constituting a fresh claim and two days later directions were set for the Claimant’s removal to Afghanistan.  Following a further exchange of letters this application for judicial review was lodged on 4th July 2005 and the removal directions were cancelled.  By order of 5th August 2005 Mr Rabinder Singh QC, sitting as a deputy judge of the High Court, granted permission to apply for judicial review.  His observations were:-
“1. As is well established, cases of this type have to be given the most anxious scrutiny.
2. The point which has persuaded me to grant permission is that the decision of the adjudicator has arguably been superseded by more recent events, as mentioned in the ECRE report of May 2004 and other more recent documents, as to the availability of protection in different parts of Afghanistan, in particular for a person of Pashtun origin.  Although the Secretary of State rightly submits that these documents are of a general nature rather than specific to the Claimant (paras. 11-14 of the summary grounds), in my view there is (just) enough to grant permission so that the case can be argued more fully: the Claimant’s case is in essence that the general situation is so bad that reasonable protection is not available for someone of his origins.
3. I will not limit the grant of permission  but the Claimant’s representatives should think carefully about what they pursue to a full hearing: in particular, the argument about medical treatment would appear to be untenable in the light of the House of Lords decision in N v SSHD [2005] UKHL 31”.

4.	In accordance with the deputy judge’s advice, the argument about medical treatment has not been pursued.
5.	The proper approach to a fresh claim case
In R v Secretary of State for the Home Department ex parte Onibiyo [1996] QB 768 at 783 Sir Thomas Bingham MR (as he then was), speaking of fresh claim cases under what was then Rule 346 of the Immigration Rules, said:-
“The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the Claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim.”
6.	That dictum was common ground between Mr Satvinder Singh Juss for the Claimant and Mr Vikram Sachdeva for the Defendant: indeed, it corresponds closely to what is now paragraph 353 of the Rules:-
“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.  This paragraph does not apply to claims made overseas.”
7.	The controversial passage of Lord Bingham’s judgment, however, which he described as a “tentative” view which he had reached “with some  misgivings”, is that a decision by the Home Secretary on whether a claim is a fresh claim may only be challenged on Wednesbury grounds.  The question is whether it remains binding today given that new Rule 353 is not identical to old Rule 346, and that since Onibiyo the Human Rights Act 1998 has come into force.  Neither counsel was able to cite any consideration of this issue by the Court of Appeal.  In R (on the application of R and another) v SSHD [2005] EWHC 520 Admin, a case under old Rule 346, Hughes J said that it was not for the court to substitute its own opinion for the Home Secretary’s as to whether the claim should be treated as a fresh one.  On the other hand, in another case under the old Rule, R (on the application of Golfa) v SSHD [2005] EWHC 2282 Admin at paragraph 47, Moses J said:-
“The test which must be applied is that which is adumbrated in Onibiyo, namely whether comparing the new claim with the earlier claim, the new claim is sufficiently different to admit of a realistic prospect that a favourable view could be taken of it (see the Master of the Rolls’ judgment).”
8.	Collins J has recently considered the issue in two cases on new Rule 353.  In R (on the application of Rahimi) v SSHD [2005] EWHC 288 Admin at paragraph 19 he said:-
“Of course, if it [the new material] 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, therefore I am not going to regard this as a fresh claim” ”.
However, in R (on the application of Naseer) v SSHD [2006] EWHC 1671 Admin at paragraph 37, Collins J said:
“It seems to me, on consideration and having regard to the circumstances of a case such as this, that [the observations in Rahimi] 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 ….”
9.	I respectfully share the misgivings of Lord Bingham about his tentative view in Onibiyo.  Judges are used to saying whether cases have a realistic prospect of success: it is the test applied in the vast majority of applications for permission to appeal.  But it is a more complex, perhaps convoluted, task to consider whether it is irrational or unreasonable to say that a claim does not have a realistic prospect of success; or, on a permission application, that it is arguably irrational or unreasonable to say that a claim does not have a realistic prospect of success.  If the matter were free from authority, I would hold that on judicial review the court should itself consider whether, taking the material which was before the Secretary of State/immigration judge/Tribunal (and any findings by the judge or Tribunal on that material), but adding to that the new material, there is a realistic prospect of success. But it seems to me that I must follow Onibiyo until and unless the Court of Appeal holds that it is no longer good law.  Whether it will do so in Rahimi remains to be seen.
10.	Both sides have relied on new material: in Mr Juss’ case this included an editorial in the Times (mainly about conditions in southern Afghanistan) published four days before the substantive hearing, which was the subject of a fresh decision letter on the morning of the hearing; and a report from the US State Department’s Bureau of Democracy, Human Rights and Labor handed in at the hearing.  Mr Juss sought at one stage to persuade me that I should grant the application for judicial review on the basis, if nothing else, that in his decision letter of June 2005, the Secretary of State had ignored a material consideration, namely a May 2004 report of the European Council on Refugees and Exiles, and that his consideration of that report after the grant of permission should make no difference.  But that seems to me the wrong approach on a fresh claim case.  I accept the submission of Mr Sachdeva that such a finding of itself could only lead to a direction that the Defendant consider whether in the light of that report the case should be treated as a Rule 353 fresh claim.  He has now considered it (and likewise further reports and materials submitted by the Claimant) and issued negative decision letters about it.  Both sides accepted in the end, save in relation to the report handed in at the hearing, that the material as a whole, and the Secretary of State’s continuing refusal to treat it as amounting to a fresh claim, should be the subject matter of this application, and that no purpose would be served in requiring formal amendment of the pleadings to take account of this.  
11.	The new material: general risk to Pashtuns.
	In May 2004 the European Council on Refugees and Exiles (ECRE) published a document entitled “Guidelines for the Treatment of Afghan Asylum Seekers and Refugees in Europe”.  This stated:
“12. 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 with 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.
…
17. ECRE considers that certain categories of individuals amongst the Afghan population may have ongoing protection needs that remain unchanged despite recent political developments in Afghanistan. These groups include: 
· Pashtuns, who have suffered violence and harassment in the northern provinces because of their perceived allegiance to the Taliban. Some 60,000 Pashtuns are said to be present in the southern provinces refusing to move back for fear of persecution.”
12.	The ECRE report was, as Mr Juss accepted, the high point of his case.  Two other reports written in 2004 are cited in the Home Office’s Country of Origin Information (COI) document of April 2006.  The Freedom House Afghanistan Country Report 2004 recorded that “while Pashtuns in Kabul have not been systematically targeted to the same extent [as in the North], they do face some harassment and discrimination by local police and intelligence officials”.  A review paper by the International Organisation for Migration stated that “this year [2004] has seen the first returns of ethnic Pashtuns to their places of origin in Faryab and Badghis provinces in north western Afghanistan”.  
13.	A report by the United Nations High Commissioner for Refugees in June 2005 indicated that Pashtuns were still being persecuted in the North of Afghanistan. Finally the US State Department Bureau of Democracy, Human Rights and Labor, in a report written in March 2006, noted widespread and serious Human Rights violations.  Pashtuns are not specifically mentioned as victims, but the document records reports of politically motivated or extra-judicial killings by the government or by its agents and incidents of prisoners being tortured, in each case in Kabul.  This report has not been taken into account by the Defendant in any of the decision letters, since it was produced on the day of the hearing, and it would therefore be wrong for me to take it into account.  
14.	The relevant law was accepted by both counsel to be found in two recent decisions of the House of Lords.  In R (Bagdanavicius) v SSHD [2005] 2 AC 668 the House of Lords held that on a claim against removal on Article 3 grounds the court has to make an assessment of the conditions in the receiving country so that it can determine whether there is a real risk that, if returned there, the person concerned would suffer harm amounting to proscribed ill treatment contrary to Article 3.  The House further held that since any harm inflicted by non-state agents will not constitute Article 3 ill-treatment unless in addition the state has failed to provide reasonable protection, to avoid expulsion on Article 3 grounds an applicant must establish, in addition to showing that he would be at real risk of suffering serious harm from non-state agents, that the receiving country does not provide a reasonable level of protection against such harm. 
15.	In R (Januzi) v SSHD [2006] 2 WLR 397 the House held that there was no basis in the Convention for a rule that internal protection is not available where the quality of life in the place of relocation does not meet the basic norms of civil, political and socio economic human rights. The question whether it would be reasonable or unduly harsh to expect a claimant to relocate is to be assessed by considering whether he could live a relatively normal life in the place of relocation, judged by the standards generally prevailing in his country of nationality. There is no absolute rule that relocation is not available where the state sanctions or connives at the feared persecution.
16.	It appears that there are no Country Guideline decisions of the Asylum and Immigration Tribunal applicable to the facts of the present case, but Mr Sachdeva drew my attention to two reported decisions.  In each case the hearing took place in late 2004, but no reference was made to the ECRE report.  In ND [2004] UKAIT 00296 the Adjudicator had found that it would be unduly harsh to expect the Claimant, a Pashtun, to return to Kabul: an appeal by the Secretary of State was allowed.  In ZN [2005] UKAIT 00096 the Claimant had likewise been successful before the Adjudicator, who found him to be at risk from a local warlord.  The decision was upheld, but at paragraph 21 the Tribunal said:-
“The Adjudicator made very clear that he did not dispute that in the light of the objective evidence the authorities [in Kabul], supported by ISAF, were able to ensure protection for the generality of its citizens, including the generality of Pashtuns”.
17.	The critical finding of the Adjudicator in the present case (in paragraph 39) was that while there is a risk of ethnic violence in some parts of Afghanistan, the protection of the State is certainly available in Kabul and in other places with the support of the international community.  There was an accumulation of evidence placed before me that in the north of the country, which I take to include Badgis, Pashtuns are at significant risk.  As to Kabul, the ECRE report provides some evidence of the partial breakdown of state protection in 2004, which it regards as having been alleviated by the presence of ISAF, but only to a limited degree.  There is no evidence that in Kabul there is a particular risk of persecution of Pashtuns.
18.	Mr Juss submits that it is time that the issue of risk on return to Kabul (either for Pashtuns or generally) was considered by the Tribunal in a Country Guideline case. There is a good deal of force in that submission.  However, I have to decide the case on the material currently available, and having regard to the cases of Bagdanavicius and Januzi in particular.  Taking the evidence as a whole, I cannot say that it is irrational or unreasonable of the Secretary of State to take the view that there is no reasonable prospect of a different conclusion about the general risk to a Pashtun returned to Kabul now from that reached by the Adjudicator in this case in 2002.
19.	Specific risk to the Claimant
The Adjudicator found in paragraphs 35 to 36 of his Determination that there was no specific risk to the Claimant, and went on to say that the only basis for a claim is Pashtun ethnicity.  Mr Juss reluctantly accepts that it is not open to me to act belatedly as a court of appeal from that finding.  Mr Juss, however, relies on three new items of evidence specific to the Claimant’s case.
20.	The first of these is a letter, or purported letter, from the Afghan Red Crescent Society (ARCS) in March 2005, stating:–
“Sardar Wali son of Azmuddin, a resident of Badghis province, was detained along with his sons, Mohammed Rauf and Fazl Khan, by Ismail Khan, the former governor of Heart.  They are living in a state of uncertainty. I should also mention that the condition of their health is not good at the moment.”
21.	This letter, so far from helping the Claimant’s application, was regarded as extremely damaging to his credibility.  A later letter from the ARCS alleged that the first letter was fake; the Claimant’s response was that the writer of the second letter was attempting to ingratiate himself with a local warlord. The Home Office decision-maker refused to accept this and wrote that the Claimant’s credibility had been entirely destroyed by his reliance on a forged letter.  I regard it as intrinsically unfair, save in the most obvious cases, that an applicant who has given evidence and been cross-examined before a judge and whose credibility has been upheld should later be treated as a liar by the decision-maker without his having the opportunity to have that proposition tested before a judge.  But even if the March 2005 letter is genuine, it is of very little assistance to the Claimant.  It does not say when, where, why, or for how long the Claimant’s family members were detained, and does not bear on the risk or otherwise to him if he is returned to Kabul.  The same can be said of a letter from Lieutenant General Mohamed Ahmadzai, again describing the imprisonment of the Claimant’s father and two of his brothers in Herat province. Thirdly, there is a detailed affidavit of 22nd February 2005 from the Claimant’s mother. The only part of this which deals with alleged events in or near Kabul reads as follows:-
“Later we came to my brother’s house in Logar province [just to the south of Kabul].  After we arrived in my brother’s house, the police Kabul [sic] came to my brother’s home and looking for my son Abdul Wali. They searched the house interrogate [sic] and harassed us and they took my brother with them to Kabul.”
The Secretary of State’s response to this is to say that the document is a copy and that “furthermore, an affidavit from a family member cannot add probative or corroborative weight to your client’s claim”: as a general proposition this would be far too sweeping, but I take it to be specific to the Claimant’s case.  A later letter states that “in general the documents submitted could not be considered reliable and therefore little weight could be attached to them.”  If the test for me to apply were as expressed by Collins J in Rahimi I might well take a different view, but if the test is, as I have held it has to be, as laid down by Bingham MR in Onibiyo, I cannot say that the Defendant’s conclusion is irrational or Wednesbury unreasonable.
22.	Conclusion
It follows that the application for judicial review must be dismissed.