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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> IB and TK (Sikhs, Risk on return, Objective evidence) Afghanistan [2004] UKIAT 00150 (20 May 2004) URL: https://www.bailii.org/uk/cases/UKIAT/2004/00150.html Cite as: [2004] UKIAT 150, [2004] UKIAT 00150 |
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APPEAL No. IB and TK (Sikhs, Risk on return, Objective evidence) Afghanistan [2004] UKIAT 00150
Date of hearing: 16 March 2004
Date Determination notified: 20 May 2004
IB and TK | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
"2. You state that you have been persecuted both by the Taliban and the Mujahideen in Afghanistan. You state that you were physically and verbally abused by the Taleban because you are a Sikh, and prevented on many occasions from attending the Gurudwara. You state that you were also put under pressure to convert to Islam. You state that your father was killed by the Taleban in September 2000 when he was trying to protect you from being beaten by then. You also state that in October 2000 you were kidnapped by the Taleban and held for 4-5 days and that you were released after a friend of yours paid them. You also state that you were beaten by them whilst they detained you.
3. You also state that prior to the arrival of the Taleban, you were persecuted by the Mujahideen. You state that you were taken to the police station and asked by them to convert to Islam in 1994. You state however that you escaped during an explosion at the police station. You also state that the Mujahideen used to come to your house and beat you and demand money from you and [you] also state that you were asked to convert to Islam on a number of occasions."
"3. In a statement lodged with the Home Office on 29 April 2001 the appellant said that he ran a shop in Kabul. Problems started when the Mujahideen took control, but more particularly after the Taliban came to power. They took away the appellant's brother in July 2000. They demanded $4,000 for his release, but when the appellant made further enquiries, his brother had disappeared. On 23 January 2001 the Taliban detained and tortured the appellant over a period of twenty days until a friend paid a bribe for his release. On 14 March 2001 an unknown person offered to arrange the family's travel abroad for US$22,000. He took this opportunity. At interview the appellant added a few details. Under the Taliban he was not allowed to pray, was ordered to shave his beard and was insulted and abused in public."
"There was no adequate explanation for giving a quite different account of detention at interview as compared with the statement or for failing to state he was released on payment of a bribe. The obvious conclusion is that he could not remember the statement invented by him or on his behalf. The appellant in cross-examination made it clear that it was because of his lack of resources and the general situation in Afghanistan that he did not wish to return, not because of any particular risk to him."
"The appellant is from Jalalabad. He could not be returned there; it is common ground that Kabul is the only place in Afghanistan where the rule of law operates. The appellant would be returned to a city where he has no roots or connections."
We asked Miss Hanrahan if what was asserted there was, indeed, common ground between the parties and she conceded that it was and B would be at real risk of persecution in Jalalabad.
"14.5. We were referred to pages A62 and A 63 of the Claimant's bundle. However, in the main, this document relates to the problems of Sikhs in a place called Khost in Afghanistan. There is reference, on page A63, to the Sikh community leader in Kabul (Autur Singh) saying that "in terms of freedom" their lives were much better now and that they had good relations with the officials in Kabul. Although it is true that he is quoted as lamenting the lack of financial support for the Sikh community, as compared to other communities, there is nothing which suggests that Sikhs are a persecuted ethnic group in Kabul. Indeed, we note that, according to the last sentence of paragraph 6.42 of the CIPU report, four Hindu and Sikh delegates who attended the Loya Jirga in June 2002 reported that they were no longer repressed and felt free to practise their religions. Further, in September 2002, the UNHCR-Kabul and Co-operation Centre for Afghanistan confirmed that the situation for Hindus and Sikhs was generally good; there is religious tolerance of these groups and they have the right to practise their religions. The source for this information (according to footnote 8c to paragraph 6.43) is the Danish fact-finding report from September to October 2002. The Amnesty International Report dated 23rd June 2003 in the Claimant's bundle (which starts at page E17) refers (on page E25) to three Sikh asylum seekers who were forcibly returned by the United Kingdom and who were forced to seek shelter in a Sikh temple in Kabul as they had nowhere else to go. They reported that they were "singled out for abuse" in a market place in Kabul three days after their return. Whilst we have noted this, this does not amount to evidence of treatment which is sufficiently severe as to amount to persecution or treatment in breach of Article 3.
14.6 Although we agree with Mr Patel that paragraphs 6.38 and 6.39 of the CIPU report are, n general terms, based on out-of-date sources, we have come to the conclusion, by considering the objective evidence relating to the current situation which is before us, that Sikhs are not a persecuted ethnic group in Kabul. We have concluded, on the evidence before us, that there is no real risk that the Claimant would face treatment amounting to persecution or breach of her Article 3 rights, simply on account of being a Sikh.
"We propose … to highlight the protection and security situation facing Sikhs within the broader context of the current situation in Afghanistan. We also articulate UNHCR's considered opinion that as non-Muslim religious minorities in Afghanistan, Sikhs and Hindus are particularly susceptible to persecution in the sense of the 1951 Convention.
… In some instances, UNHCR's view of the current situation may furnish the elements for establishing a well-founded fear of persecution under Article 1A(2) of the 1951 Convention. In other instances involving the indiscriminate effects of widespread violence and disorder, UNHCR's views could contribute to a decision to recognise protection needs under Human Rights instruments, even if protection under the 1951 Convention is deemed not proven. The UNHCR's comments are set out in general terms. It is for the applicant's legal representatives to draw on UNHCR and other sources in order to establish how the merits of the individual case correspond with the relevant protection criteria."
"The general human rights situation remains a source of great concern. The lack of adequate national security and law enforcement capacity and the weakness of the justice system exacerbate human rights violations. Abuses are reported in all parts of the country, most often by forces under the control of regional factions or local commanders. The main features of the prevailing security situation are the ongoing military activity against Taliban forces, the continuing 'war on terrorism' by the coalition forces, and the continued factional clashes and warfare by local warlords. There is concern about re-grouping of Taliban forces in the south east and targeted killings of aid workers. Factional and tribal clashes have led to the internal displacement of civilians and the forcible recruitment of young men from villages in direct contravention of decrees issued by central government. The military or militia control [in] certain areas is also linked to extortion of money, looting, the abduction of women, kidnapping and ransoms and unlawful occupation of land and unlawful control of water.
All of this makes for a precarious security and protection environment in which a number of individuals and groups are at risk of human rights abuses and persecution. The rule of law is a long way from enjoying full respect and implementation and this has a bearing on the question as to whether effective national protection is available in Afghanistan. In this regard, Afghanistan's legal institutions suffer from a lack of resources while the record of laws and regulations has been destroyed and much has disappeared during the years of conflict, leaving practitioners unclear as to the substance of the country's law. Although court systems exist from district to national levels, the influence of commanders and powerful figures often renders it impossible for fair and just decisions to be reached over land disputes."
"The UNHCR's information is that there are some 3,500 Sikh and Hindu families in Afghanistan, mainly living in Kabul, Ghazni, Kandahar, Helman and Nangahar provinces. Until 1992, they had not suffered from discrimination and could exercise their religion freely in the urban centres where they predominantly lived. During the civil war and Taliban rule, many of their temples were destroyed or used as military bases. The community still suffers from the consequences of a more rigorous and less tolerant application of Islamic values by the state and the various factions in power during the last fourteen years. As a result, the community still faces various forms of intimidation in public places and children cannot attend their existing Sikh/Hindu schools.
Against this backdrop, and after giving careful consideration to the current circumstances, UNHCR's opinion is that Sikhs and Hindus from present day Afghanistan are among those who qualify for protection under the 1951 Convention."
"A report by [APAMR] on 22 May 2003 stated that, in 2002, some fifty Hindu and Sikh families returned to Afghanistan, some of whom found their houses, temples, lands and shops being occupied by commanders, tribal leaders and armed groups. Some are too afraid to repossess their properties for fear of reprisals from the present occupants. Problems of this nature were reported in Kandahar, Nangahar, Helman and Khost provinces. The Hindus and Sikhs who have returned to Afghanistan are reported to be mostly living in temples (Daramsals) in Kabul and other provinces, as they do not have a house or job to support themselves. Representatives of the Hindu and Sikh communities told APAMR that they had not been consulted about the selection of a member for the Constitution Commission to represent their community and they have not been consulted them [sic] about the difficulties and problems their community faced. It is estimated that 1200 Hindu and Sikh families are now living in Afghanistan including 350 families in Kabul."
Further, at paragraph 6.54, drawing once more on APAMR, it is said that Sikhs and Hindus are unwilling to send their children to Afghan schools (as opposed to the limited provision still remaining in Sikh/Hindu schools) "for fear of mistreatment". What is clear is that the CIPU Report does not seek to make any critical evaluation of the current position of the Sikh and Hindu minorities. It is really a sequential history from various sources which as it has now been expanded makes it clear that the relatively optimistic picture painted following the overthrow of the Taliban needs to be revised in light of what are clearly pessimistic reports which justify the comparison made with the separation of the two communities in India with the fact that in Afghanistan they "have become united in adversity" (paragraph 6.51).
"We cannot walk on the streets without suffering harassment. We are easily identifiable because of the way that we dress and, as a result of this, are singled out by the Muslim people for abuse and persecution. We cannot approach the police for protection because they are not interested in our safety, dignity or well-being; they are interested only in asking for bribes. The police claim that we supported the Taliban and use this to justify ignoring us as a community. We are told that we are not welcome in Afghanistan and that we should go to India."
"There are regular rocket and bomb attacks in Kabul, and there have been a number of attacks against westerners and suicide bomb attacks against civilians, including one in a crowded shopping street. On 28 December 2003, six people died in a probable suicide car bomb near Kabul Airport. On 25 December 2003, a bomb destroyed a wall on the UN compound in Kabul. Several rockets were fired into residential areas of Kabul whilst the Constitutional Loya Jirga (CLJ) was meeting from 14 December 2003 to 4 January 2004, although none are believed to have been aimed at the CLJ itself. On 22 November 2003, a small bomb exploded near the Intercontinental Hotel, although no one was injured. The Intercontinental Hotel, and other hotels where foreigners might stay, will continue to be possible targets for such attacks. On 5 November 2003, a bomb exploded near the Kabul offices of Oxfam and Save the Children but there were no casualties and on 7 November 2003, an Indian national, working for an Indian construction company, was shot dead by unknown attackers. There have been a number of attacks against Kabul International Airport and further attacks cannot be ruled out. On 7 June 2003, a suicide bomb was detonated alongside a bus carrying German troops from the International Security Assistance Force, killing several and injuring many others."
"It follows that if the home State can afford what has variously been described as 'a safe haven'. 'relocation', 'internal protection', or 'an internal flight alternative' where the claimant would not have a well-founded fear of persecution for a Convention reason, then internal protection is not necessary. But it must be reasonable for him to go and stay in that safe haven. As the majority of the Federal Court of Australia observed in Randhawa (above) … :
'If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from where he or she has fled to relocate to another part of the country of nationality, it may be said that, in the relevant sense, the person's fear of persecution in relation to the country as a whole is well-founded.'
In determining whether it would not be reasonable to expect the claimant to relocate internally, a decision-maker will have to consider all the circumstances of the case, against the backcloth that the issue is whether the claimant is entitled to the status of a refugee. Various tests have been suggested. For example, (a) if as a practical matter (whether for financial, logistical or other good reason) the 'safe' part of the country is not reasonably accessible; (b) if the claimant is required to encounter great physical danger in travelling there or staying there; (c) if he or she is required to undergo undue hardship in travelling there or staying there; (d) if the quality of the internal protection fails to meet the basic norms of civil, political and socio-economic human rights. So far as the last of these considerations is concerned, the preamble to the Convention shows that the contracting parties were concerned to uphold the principle that human beings should enjoy fundamental rights and freedoms without discrimination. In Thiranuvukkarasu, Linden JA, giving the judgment of the Federal Court of Canada said at 687:
'Stated another way for clarity, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?'"
"So far as refugee status is concerned, a comparison must be made between the asylum-seeker's conditions and circumstances in the place where he has reason to fear persecution and those that he would be faced with in the suggested place of internal location. If that comparison suggests that it would be unreasonable or unduly harsh to expect him to relocate in order to escape the risk of persecution, his refugee status is established."
We have therefore considered this issue on the basis of a comparison between the situation of the Appellant in his former home area of Jalalabad and in Kabul. For the reasons which we have enumerated above in paragraph 43, with the consideration under (g) playing a decisive role in our finding by reason of its discriminatory nature, we find that the cumulative effect of these factors is that it would be unreasonable or unduly harsh to require this particular Appellant to relocate with his family to Kabul and that he is accordingly entitled to the protection of the Refugee Convention. We have not considered whether there are other areas of Afghanistan to which B might reasonably be expected to relocate because it is our understanding of the concession made Ms Hanrahan that the only place of relocation in Afghanistan considered appropriate by the Respondent for consideration in B's case was Kabul. As each appeal must be decided on its own specific facts, this does not mean that other areas for relocation may not be appropriate in other cases.
J Barnes
Vice President