Upper Tribunal (Immigration and asylum chamber), 2005-05-03, [2005] UKIAT 96 (ZN (Warlords, CIPU list not comprehensive))
| Jurisdiction | UK Non-devolved |
| Judge | Dr HH Storey, Mr B D Yates |
| Status | Reported |
| Date | 03 May 2005 |
| Published date | 03 May 2005 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 26 November 2004 |
| Subject Matter | Warlords, CIPU list not comprehensive |
| Appeal Number | [2005] UKIAT 96 |
ZN (Warlords – CIPU list not comprehensive) Afghanistan [2005] UKIAT 00096
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing : 26 November 2004
Date Determination notified:
03/05/2005
Before:
Dr H H Storey (Vice President)
Mr B D Yates
Secretary of State for the Home Department
APPELLANT
and
RESPONDENT
Representatives: Mr S Ouseley, Home Office Presenting Officer, for the appellant; Ms S Kalim, Legal Representative of Ashgar & Co. (Southall) for the respondent.
DETERMINATION AND REASONS
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The appellant is the Secretary of State. His appeal is against a determination of Adjudicator, Mr P.B. Afako, notified on 10 December 2003 allowing the appeal of the respondent (hereafter “the claimant”) against a decision giving directions for his removal following refusal to grant asylum.
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The Adjudicator accepted that the claimant was a Pashtun whose home region was Charikar. He had joined the Hizb-e-Islami in the early 1990s. A split had later developed between the group of Haji Pacha Mir (who was also the claimant's cousin) and a Jamiat-e-Islami faction led by a commander called Jan Ahmed. In 1996 the claimant and his cousin had been ambushed by Jan Ahmed’s men. In the ensuing exchange the claimant was injured. His cousin and six others were killed. Three people on Jan Ahmed’s side had been killed. In October 1999 the Taliban captured and tortured the claimant along with others. After a month, the area had been recaptured by the Northern Alliance and he was freed. In fear of Jan Ahmed, the claimant fled to Kabul. In November 2001, after the Northern Alliance triumphed over the Taliban, Jan Ahmed resurfaced as part of the government in Kabul, while retaining control of the army in the province of Charikar. Jan Ahmed had sent his men to raid and arrest a brother of the claimant's cousin. They were also to arrest the claimant, but he eluded them. Whist he was in hiding elsewhere they raided his house several times. He then fled the country.
3. The Adjudicator concluded:
“The appellant's fear is of reprisals from Jan Ahmed and his men, who are pursuing a vendetta arising from events which took place in the province of Charikar.”
4. He accepted that there was adequate protection available for most in Kabul, including most Pashtun, but concluded:
“The appellant's case is beyond a generalised ethnic or political risk. A vendetta by a powerful “warlord” is a different class of risk from a general fear of opportunistic targeting, and it is the former that the appellant invokes.”
5. The grounds of appeal contended, firstly, that the Adjudicator erred in allowing the appeal on the basis which he did, as there was no objective evidence to support the claimant's contention about a person called Jan Ahmed. “It is submitted that, if a person called Jan Ahmed were closely connected to the state and the machinery of power in Afghanistan, there would be objective evidence about him”. Secondly, they maintained that the Adjudicator's finding that there would be a failure of state protection towards the claimant was contrary to recent October 2003 CIPU information at paragraph 5.68.
6. At the outset of the hearing Miss Kalim conceded all she had been able to find when searching for references to Jan Ahmed in objective sources was a reference to a General Almas who was described on an Afghan website in an item dated 25 November 2004 as the commander of goleurdu of Porwan in the government of President Hamid Kharzai. She conceded that there was no obvious reason to consider this was a reference to Commander Jan Ahmed.
7. Even given the fact that no evidence has come to light concerning the existence of Commander Jan Ahmed, we see no error of law in the Adjudicator's determination. The grounds of appeal did not challenge the Adjudicator's positive credibility findings and at paragraph 6 the Adjudicator gave clear and adequate reasons for finding the claimant wholly credible. We note that at several points he considered to what extent the claimant's account was consonant with the objective evidence.
8. Part and parcel of the evidence thus accepted by the Adjudicator was that the claimant had come to the adverse attention of Jan Ahmed both in his home area of Charikar and in Kabul.
9. The lack of any positive identification of Jan Ahmed in the objective evidence is of course a lacuna in the claimant's story. However, we repeat, there has been no challenge to the claimant's credibility. It is an axiom of refugee determination that it is not necessarily fatal to an asylum claim that it is not corroborated. Furthermore, this is not a case where the Adjudicator relied solely on the claimant's evidence without placing that in the context of the background materials. He refers at various points to the CIPU Report, a Human Rights Watch report and a Voice of America news report.
10. There is some albeit limited force in the point raised in the grounds that one would expect to find some reference to Jan Ahmed if he was in fact closely connected to the Northern Alliance. We observe too that the Secretary of State in the grounds stated that there was “no trace of a Jan Ahmed in the objective materials”. However, we also note that the “objective materials” relied on were far from being a wide-ranging set of sources. The CIPU October 2003 Report does contain lists of persons prominent in the Northern Alliance, but it does not purport to be exhaustive. As we understand it, this and other main sources on Afghanistan fully recognise that even under the Kharzai regime, the political and military landscape in Afghanistan remains dominated by a shifting and uncertain array of commanders, warlords or other chiefs. Even within Kabul it does not appear that the authorities are able to entirely prevent warlord activities in connection with individual cases. This is not a case where the Secretary of State, in support of his appeal adduced evidence, e.g. from an expert or from a comprehensive list stating positively that there was no local commander in Charikar with connections to the Northern Alliance called Jan Ahmed. In our view, in the context of objective evidence which lacked real comprehensivity and, in the light of the continuing state of political and military flux in Afghanistan, it was not sufficient for the Secretary of State merely to rely on the failure of the claimant to prove his case on the basis of objective materials.
11. We consider our analysis accords with principles set out by the Court of Appeal in respect of the s.101 of the Immigration and Asylum Act 2002 and its limiting of the jurisdiction of the Tribunal to a material error of law, e.g. in the recent Court of Appeal judgment, Ndlovu [2004] EWCA Civ 1567 in which it was held that the Adjudicator did not make an error of law in his assessment of the evidence in relation to food availability and distribution. Their lordships noted that there was no specific background evidence showing that merchants had been instructed to sell food only to card carrying ZANU-PF members. However, the Adjudicator clearly accepted and relied on (i) the claimant's own evidence, as distinct from the background evidence; (ii) the background evidence which was consistent with the claimant's, insofar as it showed that the ruling party used food distribution as a tool against potential political adversaries. The findings made by the Adjudicator were based first on what the claimant herself said and secondly on the background material.
12. There was also no error of law, the Court held, in relation to the Adjudicator's finding as to persecution. The Adjudicator was “obliged and entitled to form his own evaluation on all the facts and all the evidence”. The Adjudicator had placed heavy reliance on the claimant's particular evidence and was held to be entitled to reach the conclusions he did. More recently, the Court of Appeal in Mlauzi [2005] EWCA Civ 128 in which Brooke, LJ stated at paragraph 42 by reference to the Tribunal's error of law jurisdiction under s.101:
‘If it is simply an issue of fact which the Adjudicator had to determine on the facts, including the factual background evidence before him/her, appeals from a reversal by the IAT are going to be less easy to resist ...’
13. In our view the position is very similar in this case. The Adjudicator relied heavily on the claimant's evidence. Although he had no specific evidence of the existence of Jan Ahmed (apart from the claimant's evidence) he plainly saw the claimant's account, in particular the history he recounted of incidents that had occurred in his life since 1996, to be consonant with the background material, to which he did have regard. The background materials before him did not contain any detailed list of warlords. He was therefore entitled to accept the credibility of the existence of Jan Ahmed without reference to any positive objective evidence, because there was a good...
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