A Renewed Application for Permission to Apply for Judicial Review and Another v Secretary of State for The Home Department and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE BUXTON |
| Judgment Date | 14 July 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0714-10 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 July 2000 |
| Docket Number | C/2000/5154 |
[2000] EWCA Civ J0714-10
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
(Mr Justice Tucker)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Buxton
C/2000/5154
MRS M PHELAN (Instructed by Thompson & Co, 48A Tooting High Street, London, SW17 ORG) appeared on behalf of the Appellant
MISS GIOVANETTI (Instructed by Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared on behalf of the Respondent
Friday, 14th July 2000
: Abdul Rashid Arshad renews his application for judicial review of (1) the determination on the 22nd March 1999 of the Special Adjudicator, dismissing Mr Arshad's asylum appeal from the refusal by letter dated 3rd November 1992 of his asylum application, and (2) the determination on 15th June 1999 of the Immigration Appeal Tribunal, refusing Mr Arshad leave to appeal from the Special Adjudicator's determination. He applied on 6th September 1999 for orders quashing those determinations. That application was refused by Mr Justice Sullivan on the papers. Mr Arshad then applied to Tucker J who on 2nd February 2000 refused permission to move.
The facts are these. Mr Arshad was born in 1942 in India and is a citizen of Pakistan. He is an Ahmadi. Traditional Muslims in Pakistan regard the Ahmadis as non-Muslims, but Ahmadis regard themselves as Muslims. Ahmadis are subject to discriminatory legislation in Pakistan but the Constitution does not preclude them from practising their religion. The laws are aimed largely against Ahmadis who seek to proselytise in their faith.
Mr Arshad lived originally in the city of Rabwah where his parents lived, but went to university in Lahore. In Rabwah he became the Vice President and General Secretary of the Ahmeydia Youth Movement. In 1975 his brother was arrested for selling Ahmadi books and detained for two weeks. This brought his family to the attention of the Islamic fundamentalists. In February 1986 a number of prominent members of Ahmadi organisations were arrested. The police came to arrest him, but he escaped and lived with an uncle in Faisalabad for eight months. In January 1988 he moved to Lahore. He used a false name and worked in a factory. In 1991 his father died. Mr Arshad attended the funeral but returned to Lahore after that. One day his co-workers asked if he was an Ahmadi and abused him. They set fire to some of his belongings. He then moved to another factory where he was respected by his new employer and given living quarters and meals. He visited Rabwah from time to time and in mid-March 1992 he was spotted by fundamentalists in a bazaar but escaped. His mother died the next month. He then decided to leave Pakistan.
He arrived in the United Kingdom on 21st April 1992 and applied for asylum one week later. He was granted leave to enter as a visitor for six months, but he has been here ever since. His asylum application was refused on 3rd November 1992. He appealed. But remarkably and regrettably it was not until 1st February 1999 that the appeal was heard by a Special Adjudicator.
In his determination the Special Adjudicator set out the facts which I have recounted and which are largely based on the evidence of Mr Arshad, whom the Special Adjudicator found to be a credible witness. The Special Adjudicator correctly directed himself that the burden of proof was on Mr Arshad and that the appropriate standard of proof was that set out in R v Secretary of State for the Home Department Ex parte Sivakumaran [1988] AC 958 and Kaja v Secretary of State for the Home Department [1995] Imm AR 1. The Special Adjudicator referred to the background material put before him as to conditions in Pakistan, saying that it was clear that the lot of the Ahmadis in Pakistan was not an enviable one, and that there was a good deal of prejudice and discrimination towards them, especially in the case of those Ahmadis targeted by religious fanatics. But he said that it was well-settled that Ahmadis as such are not persecuted in Pakistan and that there can be no automatic recognition of Ahmadis as refugees. He said that each case involving Ahmadis must be looked at on an individual basis.
The Special Adjudicator referred to the three main incidents relied upon by Mr Arshad. That involving his brother took place over 20 years ago. The second, his escape from arrest in Rabwah, took place 12 or 13 years previously. The third, in March 1992, took place in Rabwah 7 years previously. The Special Adjudicator acknowledged that it might be unwise for Mr Arshad to return to Rabwah and show himself in public. But the Special Adjudicator said that by Mr Arshad's own account he had lived without difficulty for some six years between leaving Rabwah in 1986 and departing from Pakistan in 1992 apart from the single incident in the first factory at which Mr Arshad had worked in Lahore. The Special Adjudicator said that the way of life was not ideal but it could not be regarded as constituting persecution. He concluded:
"There is nothing in the evidence before me to indicate that the appellant would not be able to return to the same way of life without difficulty if he were now to go back to Pakistan. His parents have both died, and there is therefore no reason why he would need to return to Rabwah where he is known. There is no evidence that he would be likely to come to the adverse attention of religious fanatics elsewhere so long as he is prepared to take sensible precautions along the lines of those which he has adopted in the past not to provoke trouble.
Weighing up the evidence as a whole, the appellant has failed to discharge the burden of showing to the lower standard that he would have a well-founded fear of persecution for a Convention reason if he were now to return to Pakistan."
In his grounds of appeal when appealing to the Immigration Appeal Tribunal Mr Arshad challenged the decision of the Special Adjudicator on a number of factual grounds, saying that information available was not pursued by the Special Adjudicator, that pertinent facts had been misinterpreted and contradictory conclusions reached, that Mr Arshad's employment and financial circumstances had been the subject of a misdirection by the Special Adjudicator and that the current situation in Pakistan had been disregarded.
In refusing permission to appeal the Immigration Appeal Tribunal took the view that there had been no misdirection in law or wrong exercise of discretion. It was also said:
"The Special Adjudicator has concluded that the option of internal flight is available to the applicant".
In his form 86A the grounds advanced by Mr Arshad included a challenge on the ground of irrationality, and in...
To continue reading
Request your trial