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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Awan, R (on the application of) v The Immigration Appeal Tribunal  EWCA Civ 922 (15 June 2004)
Cite as:  EWCA Civ 922
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(MR JUSTICE FORBES)
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LADY JUSTICE ARDEN
MR JUSTICE GAGE
|THE QUEEN ON THE APPLICATION OF MOHAMMED NAWAZ AWAN||Appellant|
|THE IMMIGRATION APPEAL TRIBUNAL||Respondent|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
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MS J ANDERSON (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
Crown Copyright ©
"1.5 A further approach to a judge resulted in a First Information Report being filed against the Appellant and the police raided his house, but he was in hiding. The FIR was filed at the police station on 15th January 1999.
1.8 He said that another FIR was filed against him on 18th January 2000 because he had been preaching and had been seen by the same man, Qazi Ahmad.
1.9 He had finally left Pakistan on 6th March 2001 because a number of Ahmadis had been killed by gunfire in a mosque in a neighbouring town. Because, the Appellant said, he had been declared as wanted, a poster had been placed outside a police station saying that he could be shot dead on sight. This meant that anyone who saw him could shoot him and nobody would be questioned about it. The police had told his mother that he was to be declared 'a wanted man'.
1.10 He also said that his name has appeared in national newspapers and a letter had been sent to Ahmadi community indicating that he was among a number of people who would be killed."
"Turning to the Appellant's personal circumstances, I noted that he accepted that when he was in Karachi and Gujrunwalla he did not encounter any particular difficulties. He found himself able not to follow the requirement that Ahmadi should preach about their religion when he was in Karachi and claimed that this was due to advice he received from the leader of the sect. This being so, I am satisfied that he could return to Karachi or other parts of Pakistan where he would not be at risk of harassment or persecution if he followed the advice of his leader not to preach about his religion."
"5.12 Turning to the documents which have been produced I noted that the Respondent challenged the authenticity of these but was unable to produce any evidence to show that they were forged or otherwise false. I did however note that the translations were not certified and it was virtually impossible to relate the translations to the actual documents in Punjabi. I have no information about the newspapers in which it was claimed that the articles were published or where they were circulated.
"5.13 Looking at this evidence as whole, I concluded that Respondent had not provided any evidence to substantiate his doubts about the genuineness of the document and the fact that forged documents were readily available in certain countries was not in my view enough to negate their evidential value. However, even accepting that the documents were genuine, it simply established that reports had been made to the police regarding the activities of the Appellant in Daska.
"5.14 I had to balance against that the fact he was twice able to avoid arrest and detention by the payment of bribes which indicated that the authorities were not keen to pursue the allegations against the Appellant which in itself was consistent with the background information that allegations of blasphemy against Ahmadis were not pursued by the authorities. Turning to the question of credibility, I found the Appellant's story of his escape from his house to be wholly unbelievable.
"5.15 He described large numbers of police arriving whether initially or by way of reinforcements and yet he was able to escape over the roofs of neighbouring houses without even being pursued by the police. He went to his sister's house a short distance away but no attempt was made to trace him there. I concluded that this story was at best a gross exaggeration of the truth and can not confirm in my mind any serious attempt by the authorities to arrest or detain the Appellant.
"5.16 As mentioned above, he was able to live elsewhere in Pakistan without difficulty and he remained there for over a year before he decided to come to this country. He said that the only reason that prompted him to come when he did was the killing of a number of members of the Ahmadi sect in a town near his home. Even accepting that such an incident occurred, it in no way was directed against the Appellant and I was not satisfied that the authorities were pursuing any action directed at him or likely to lead to his arrest, detention or prosecution.
"6.17[sic] In conclusion, although I accepted that the Appellant was a follower of the Ahmadi teaching, I was satisfied that as long as he continued to practise privately and follow the advice of his leader not to preach as long as there were allegations outstanding against him, there was no reason to suppose that he would attract the attention of either the authorities or the Muslim population in Pakistan. Even if he genuinely feared for his safety in his own area because of the actions of one individual, I did not consider that it would be unreasonable or unduly harsh to expect him to relocate elsewhere within the country as he had done prior to his departure for the United Kingdom."
"1. The applicant is a citizen of Pakistan. His asylum and human rights claims have been rejected and his appeal dismissed by an adjudicator (Mr AJ Olson) on 10th July 2001. He now seeks leave to appeal.
"2. The apology for the length of the grounds is well made. The adjudicator for good reason did not believe the applicant's account of the police interest in and attempts to arrest him because he was an Ahmadi. He had lived for a year after the attempts to arrest him with no real difficulty and the FIRs were clearly suspect.
"3. Freedom of religion is not violated if the sect leader advises that there is no need to preach or to try to convert others. In such circumstances, Kokkinakis v Greece is inapplicable. Further, it is manifestly wrong to suggest, as the grounds do, that the Ahmadis are at risk and that internal flight must always be rejected because unduly harsh.
"4. The adjudicator's determination is adequately reasoned and discloses no arguable errors. An appeal has no real prospect of success and leave is refused."
Q. What finally caused you to leave Pakistan on 6th March 2001?
A. In Ghatialian which is near my town six people were killed in gun firing in the mosque and two months ago seven people were murdered in Tahkat Hazara. They were stoned to death in our mosque. I had been declared a wanted man and they had put a poster outside the police station saying that I could be shot dead on sight.
Q. Who put up a poster saying this?
A. When people are not arrested their names are put on a notice board saying that they are wanted.
Q. Would it have been legal for you to have been shot dead by anyone?
A. If the police could not find me and anyone could have shot me dead nobody would have questioned them about it.
Q. What date did the poster go up?
A. I do not know because there is no-one who could go and ask them?
Q. What police station was it put up outside of?
A. City Daska.
Q. Who do you fear will kill you?
A. The police, the people involved in the case or whoever finds me because my name has been in the national newspaper. Two or three months ago my mother told me that she had received a letter and this letter has also been sent to other members of Ahmadi community and people holding office in the community saying that those persons will be killed.
Q. Who are those people?
A. People holding office bearers in our community and I am included in that.
Q. Who is sending these letters?
A. I cannot confirm who they are but it seems they are the same people who killed people in Ghatialian.
Q. Who was it addressed to?
A. To my brother-in-law and my name was mentioned in the letter inside.
"He left when he did because an incident had occurred in a neighbouring village when many Ahmadis were assassinated. The police had been to his house and told his mother that he was a 'proclaimed offender' and his mother had advised him to leave the country with the help of an agent who arranged his passport."
"I am satisfied that even if the Tribunal had not made the error as to the credibility of the appellant, it would inevitably have reached the same conclusion."
"In 1984 the Government inserted Section 298(c) into the Penal Code, prohibiting Ahmadis from calling themselves Muslims and banning them from using Islamic words, phrases and greetings. The constitutionality of Section 298(c) was upheld in a split-decision Supreme Court case in 1996. The punishment for violation of this section is imprisonment for up to 3 years and a fine. The Government and anti-Ahmadi groups have used this provision extensively to harass Ahmadis."
"53. While I was in hiding, I was concerned for my mother's welfare. Though she was staying with my sister, I had the assurance that there was a possibility of seeing her. It was possible for her to be brought to the place where I was in hiding though I could not go to my hometown.
"54. During this period in hiding, I managed to support myself financially by renting out our family land. My brothers also sent money to my relative in Karachi. My wife also worked as a teacher and supported herself and my child."
"Lord Woolf referred to the principle that these should be enjoyed without discrimination. While discriminatory denial of human rights in the place of relocation can plainly be relevant to the question of whether an asylum seeker can reasonably be expected to move there, we do not consider that Robinson establishes that it will not be reasonable to require relocation unless, in the place of relocation, these human rights are protected."
"In determining whether it would not be reasonable to expect the claimant to relocate internally, a decision-maker would 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 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 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 or freedoms without discrimination."
"This application is slightly out of time. The person who entered the date on diary put the last date as 14th May 2002. As a matter of fact the last day was 13th May 2002. The application was prepared and sent on 14th May 2002 but it was told that application is out of time.
"We submit to the honourable court to allow this out of time application which is due to an administrative error at our office and no fault of applicant. We apologise for the delay."
"On an application for relief from any sanction imposed for a failure to comply with any rule ..."
(I explained in Sayers v Clarke Walker that the court was facing a similar situation in the context of an application for an extension of time after the proper time had expired.)
"... the court will consider all the circumstances including (a) the interests of the administration of justice."
"A time limit set out in paragraph (2) may be extended by the Tribunal where it is satisfied that because of special circumstances, it is just for the time limit to be extended."
Order: application for permission to appeal refused. Application for extension of time refused.