As (Afghanistan) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Richards,Lord Justice Stanley Burnton
Judgment Date20 October 2009
Neutral Citation[2009] EWCA Civ 1076,[2008] EWCA Civ 974,[2008] EWCA Civ 666
Docket NumberCase No: C5/2008/2358 & 2360,Case No: C5/2008/1101,Case No: C5/2008/0198
Date20 October 2009

[2008] EWCA Civ 666




[AIT No. AA/09410/2006]


Lord Justice Richardsand

Lord Justice Stanley Burnton

Case No: C5/2008/0198

As (afghanistan)
The Secretary of State for the Home Department

Mr J Nicholson (instructed by Messrs Parker Rhodes) appeared on behalf of the Appellant.


Lord Justice Richards

The applicant is a twenty-three year old citizen of Afghanistan who claimed asylum in the United Kingdom in February 2003. The claim was refused and an appeal was dismissed. Subsequently in June 2006 he made a fresh claim on the ground that he had converted from Islam to Christianity while in this country, and he feared persecution in consequence if he were returned to Afghanistan. That claim was also refused and an appeal was dismissed, but reconsideration was ordered and a fresh hearing considering matters de novo took place before Immigration Judge Lane. His decision, dismissing the appeal on asylum and human rights grounds, was issued on 12 November 2007. That is the decision against which the applicant now seeks permission to appeal, permission having been refused by the tribunal and by Laws LJ on the papers.


The immigration judge's dismissal of the appeal was based on a clear finding that the applicant was not a witness of truth. He said that, after a very careful examination of the evidence, he found that the applicant was not a genuine convert to Christianity, and, even if he was wrong on that, he found that the applicant would rather not practise Christianity at all if he were returned to Afghanistan or would practise it in so discreet a manner as to avoid it becoming known to others within his community, so that the applicant did not face a real risk of persecution or ill-treatment on account of his religion.


The main issue identified by Mr Nicholson on the applicant's behalf concerns the immigration judge's treatment of the evidence of two clergymen, Reverend Reasbeck and Reverend Hartley, who provided witness statements and were called as witnesses at the hearing. They both gave evidence about the applicant's attendance at church and bible study classes, and expressed the personal conviction that he was a genuine convert to Christianity. The immigration judge said that he had considered their evidence thoroughly and had no doubt that the two clergymen had attended in order to assist by giving truthful evidence. However, their evidence was not determinative of the genuineness of the applicant's conversion but must be considered together with all the other evidence before the tribunal; and, having regard to all the evidence, evidence which included lies and contradictions by the applicant, the immigration judge reached the conclusion to which I have referred.


Mr Nicholson makes a number of criticisms of the immigration judge's treatment of the clergymen's evidence. There is one passage in the judge's reasoning to which he draws particular attention. In the middle of paragraph 39 the immigration judge said this:

“Ultimately the genuine nature of the appellant's conversion to Christianity is a matter which can be judged only subjectively, and Reverend Reasbeck and Reverend Hartley acknowledge that, whilst they are of the opinion that the appellant's conversion is genuine, they could not be absolutely certain that it was so. Significantly, I note that both witnesses have previously supported the appeals of asylum seekers who have been found by the tribunal not to be genuine converts to Christianity. This fact must be set against the evidence which both witnesses gave, namely that they were sure that the appellant was unusual and a key figure who stands out from others in their church who have converted to Christianity.”


Mr Nicholson says that the immigration judge was wrong in what he said about the degree of conviction or confidence of the two clergymen as to the applicant's conversion. He also says that the immigration judge was wrong to say that they had both supported appeals of asylum seekers who had been found not to be genuine converts. They went no further, says Mr Nicholson, than to accept that they had supported people who had lost their appeals; they did not say that the appeals had been lost because the faith of those in question had been doubted by the tribunal. More importantly, he submits that it was simply not open to the immigration judge to reject the clergymen's evidence that the applicant had converted to Christianity. He has relied heavily in his oral submissions on the tribunal's decision in Dorodian (01/TH/1537), a case referred to in the order for reconsideration, though not in fact mentioned at all in Mr Nicholson's skeleton argument to this court.


It is impossible for us without the benefit of a transcript of the hearing before the immigration judge to tell whether he had misinterpreted the evidence of the clergymen. He was entirely consistent in his approach towards that evidence; for example, summarising the evidence of Reverend Reasbeck at paragraph 25 in a way entirely in line with what he said at paragraph 39. But whether or not he was correct in his understanding of the evidence, it seems to me that that is not a sufficient basis for identifying an error of law by the immigration judge.


The key point, however, is that he was, in my judgment, absolutely right to treat the clergymen's evidence as not being determinative. It was plainly for him to reach a conclusion as to the credibility of the applicant —that was not something that could be taken out of its hands by two clergymen, however genuine they were in their belief in the applicant's conversion. I have no hesitation in rejecting Mr Nicholson's submission to the contrary, and I would add that the immigration judge's approach was not one of testing religious knowledge or anything of that kind. It is clear from his reasons that he simply took into account all the evidence before him, as he was entitled to do and had to do; and he reached a conclusion reasonably open to him, on the evidence as a whole, that the applicant was not telling the truth. It seems to me that there is no arguable error of law in his approach and, as I have said, his conclusion was an eminently rational one.


There is a subsidiary complaint that the immigration judge did not give sufficient weight to the statement of the applicant's friend, Kabir Bayat, who had introduced him to the church. The immigration judge said at paragraph 41 that he had attached some weight to that evidence, but it was reduced by the fact that Kabir had not attended before the tribunal to be cross-examined. Plainly he was entitled to reduce the weight of the evidence accordingly. In any event, weight is a matter for the decision maker and there was nothing unreasonable in his approach. No error of law is identified.


In his skeleton argument, and to a lesser extent in his oral submissions, Mr Nicholson also identified a number of other matters in relation to which it is said that the immigration judge fell into error or that he failed to address or making findings on. It is unnecessary to deal with them individually. I am not persuaded that any of them involved an arguable error of law.


My conclusion is that there is no real prospect of success in this appeal. I would therefore dismiss the application before us.

Lord Justice Stanley Burnton

I entirely agree.

Order: Application refused

[2008] EWCA Civ 974




Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Richards

Case No: C5/2008/1101

[AIT No: AA/10834/2006]

As (afghanistan)
Secretary Of State
For The Home Department

Mr J P Waite (instructed by the Treasury Solicitor) appeared on behalf of the Appellant.


(As Approved)

Lord Justice Richards

This is a renewed application by the Secretary of State for permission to appeal against a decision of the AIT which, on a reconsideration, allowed the respondent's appeal under Article 3 of the European Convention on Human Rights.


The stage 2 reconsideration, dealt with by a panel consisting of Immigration Judge Parker and Immigration Judge Braybrook, proceeded on the basis of the credibility findings in the original decision by Immigration Judge Tiffen. The facts were that the respondent was born in Afghanistan. His father had joined the Hizb-i-Islami many years previously and had been promoted to the rank of commander. When the Taliban came to the area in 1996 the father joined the Taliban and was allowed to remain as a commander. The respondent's brother joined the Taliban in 1999. At the beginning of 2001 the respondent, then aged 16, also joined the Taliban. All three of them fought for the Taliban in the period 2001 to 2006, though it appears that the father and brother were more active than the respondent himself. Around the beginning of 2006 the father and brother were killed in an attack on the family home while visiting it. The respondent believed that his father, who was well known locally as a commander and for opposing the government, had been seen there and had...

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