|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
United Kingdom Asylum and Immigration Tribunal
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> AR (Christians, risk in Kabul) Afghanistan  UKIAT 00035 (4 February 2005)
Cite as:  UKIAT 00035,  UKIAT 35,  UKAIT 00035
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
AR (Christians risk in Kabul) Afghanistan  UKIAT 00035
Date of hearing: 10 November 2004
Date Determination notified: 4 February 2005
|Secretary of State for the Home Department||RESPONDENT|
40. I accept the appellant's evidence that he has converted to Catholicism and I acknowledge the baptism certificate, the relevant photograph, and the letter from Rev. Moroney of 14 October 2003. The appellant is married to a Pakistani national, who herself was born into Catholicism, and that, therefore, he and his wife form a Christian family. On any return to Afghanistan, therefore, the appellant would be in the Christian faith and the position of Christians in Afghanistan was considered by the IAT in  UKIAT 00081 R (Afghanistan), which was heard only in August 2003. I find that Determination useful in considering the objective evidence before the hearing but, of course, I have also considered the objective evidence in this case that has been placed before me. I do not find relevant objective material on the position in Afghanistan of those who have converted to Christianity within the appellant's objective bundle. I do note at paragraphs 6.55 6.56 of the CIPU report that the UNHCR was unaware of any death sentence since the establishment of the new administration in Afghanistan for having converted from Islam to Christianity. I note that religious freedom in Afghanistan is part of the 2001 Bonn Agreement and that the 1964 Constitution states that non-Muslim citizens shall be free to perform their rituals within the limits determined by the laws on public decency and public peace. I note that the US Department of State report of 2002, referred to within paragraph 6.35 of the CIPU report, reported that the central government in Afghanistan has begun to pursue a policy of religious tolerance. It is for the appellant to prove his case, and I find, taking into account the findings in  UKIAT 00081 R (Afghanistan), and the objective evidence placed before me, that the appellant has not proved to the low standard required that he would be persecuted as a converted Christian and in the practice of Christianity, whilst living in Kabul.
(i) an article by CBN news (the Christian Broadcasting Network) entitled: "Afghan Iron Curtain: The Post-Taliban Islamic" (at pages 84 to 87 of the Appellant's bundle); and
(ii) the report of the ECRE (European Council on Refugees and Exiles) dated April 2003 entitled: "Guidelines for the treatment of Afghan Asylum Seekers & Refugees in Europe" (at pages 106 to 110 of the Appellant's bundle).
It is asserted in the grounds that the Adjudicator had erred in not referring to, or considering, the above documents to which (it is asserted) his attention had been drawn.
(i) paragraphs 5.2.2 and 5.4 of the 2004 Danish Fact-Finding Report. These are to be found on pages 166 to 167 of the Appellant's bundle and pages 172 and 173, respectively, of the Appellant's bundle. They form part of the report dated June 2004 of the Danish Foreign Office Fact-Finding Mission to Kabul from 20 March to 2 April 2004 and which is entitled: "Political conditions, The Security Situation and Human rights conditions In Afghanistan" (a copy of the entire report is before us); and
(ii) an "expert report" from a Dr. A. Wali Wardak dated 31 October 2004 (there is a typographical error as to the date on the front cover of the report). This report has been prepared specifically for the Appellant.
On behalf of the Respondent, Mr. Saville relied on the Report of the Country Information and Policy Unit of the Immigration and Nationality Directorate (the CIPU Report) on Afghanistan dated April 2004.
(a) he failed to consider appropriately the CBN article and the extract of the ECRE report referred to above. The word "relevant" in paragraph 40 of the Determination (see the emboldened text above) may mean that the Adjudicator had overlooked these documents. This would be an error of law. Alternatively, it may mean that the Adjudicator had considered the documents but had not found them relevant. In this event, the Adjudicator had erred in law by not giving reasons, or any adequate reasons, for finding that the documents were not relevant. The failure to give adequate reasons is an error of law. In Mr. O'Callaghan's submission, the documents were relevant because:
(i) the article at page 85 states that Sharia law is in place in Afghanistan. The Deputy Minister of Justice is quoted as stating that Muslims are not allowed to convert. The Chief Justice (Judge Shinwari) is quoted as referring to extreme measures to deal with non-Muslims. He is quoted as saying that those found guilty in his courtroom of "sharing the gospel" could face the death penalty. He is quoted as saying that there are three ways to deal with non-Muslims the first, being a polite request to join the Muslim faith; if he refuses to do so, the second step would be to insist that he obeys the laws of Islam; if he still refuses to do so, then the third step would be to behead the individual.
(ii) page 86 gives the example of a Christian convert who lives in Kabul in fear of being publicly executed.
If the Adjudicator had referred to this material and, having considered it, concluded that there was no real risk for the Appellant, then Mr. O'Callaghan accepted that it would have been difficult for him to contend that the Adjudicator's conclusion was unreasonable. However, it was not open to the Adjudicator to say that the documents were not relevant. Mr. O'Callaghan accepted that the ECRE report at page 106 was not very helpful, in that, it makes no reference to Christians, nor does it refer to apostates. However, in Mr. O'Callaghan's submission, this is because the Christian community is very small in Kabul. It should be borne in mind that the report states that religious minorities are at risk. The ECRE report, taken together with the CBN article, may well have led the Adjudicator to a different conclusion.
(b) the Adjudicator had relied on the No. 81 case. The Tribunal had stated in that case that there was not much objective material before it on the issue of the risk facing Christians in Kabul. The Adjudicator had more objective material before him, which he did not consider. Furthermore, the No. 81 case approached the issue of risk on the basis that the Bonn accord provided for religious tolerance, whereas it is clear now that Sharia law is in place in Afghanistan.
(a) the CBN article was not an article by an objective source. The CBN is a very devout Christian organisation. Page 87 of the Appellant's bundle shows that the CBN is an evangelical network.
(b) whilst Mr. Saville accepted that, under Sharia law, the punishment for apostasy is death, this does not mean that the penalty is applied. The Deputy Minister of Justice is quoted in the CBN article (on page 85 of the Appellant's bundle) as saying that no Muslim is allowed to convert. However, nothing is said as to what would happen to a Muslim who does convert. The quote from Judge Shinwari (that those found guilty in his courtroom of sharing the gospel could face the death penalty) refers specifically to those who evangelise, as indicated by the words "sharing the gospel". The next quote from Judge Shinwari (which refers to the three ways of dealing with non-Muslims) could, in theory, apply even to those born into Christianity. In other words, he could be taken to be saying that he would want to execute all non-Muslims. Yet, there is no suggestion on the Appellant's behalf that all Christians are at real risk of persecution. The example of the convert Simon on pages 86 and 87 does not help the Appellant, because it is clear, from what Simon is quoted as saying in the article, that he is an evangelising Christian. Although Simon says that he would be executed if caught which, in Mr. Saville's submission, shows a subjective fear on Simon's part the article does not show that any fear on the Appellant's part, as someone who has not said he would evangelise, is well-founded.
(c) the ECRE report at page 107 of the Appellant's bundle refers to sections of the community who "may" have protection concerns. In other words, ECRE are not saying that the sections of the community thereafter specified would be at real risk. Furthermore, the categories named by ECRE are "Hindus, Sikhs, Shiites, Sunnis and Ismailis". There is no mention of Muslim converts to Christianity. It is therefore difficult to see how the ECRE document is a relevant source which the Adjudicator should have considered.
The ECRE report (pages 107 and 108 of the Appellant's bundle):
(a) Paragraph 15 (on page 107) refers to certain categories of individuals who "may have ongoing protection needs that remain unchanged despite recent political developments in Afghanistan". Page 108 refers to "religious minorities at risk of persecution including Hindus, Sikhs, Shiites, Sunnis and Ismailis". Mr. Saville relies on the absence of any mention of converts. The implication is that this means that they are not at real risk. We consider that this is an overly simplistic approach. The list was not meant to be exhaustive, as is indicated by the word "including". The Appellant is clearly a member of a religious minority. Potentially, therefore, he was someone who might be at risk. Beyond this, the ECRE was of no relevance, since it provided no detailed information as to the difficulties, if any, which apostates face in Kabul.
The CBN article:
(b) We agree with Mr. Saville that CBN is a partisan source. It is a Christian evangelical network, as can be seen from the caption at the bottom of page 87. This has to be borne in mind in assessing the weight to be attached to the article as a whole.
(c) The article is four pages long, but there is a section on each page which can barely be read. The quality of the copy before the Adjudicator was the same. We do not therefore know whether there is relevant information (which may be for or against the Appellant) which we are unable to read.
(d) We can see from the top of page 85 of the Appellant's bundle that the Afghan President, Mr. Hamid Karzai, is said to be in a tug-of-war with powerful radical Muslim groups which (it is said) are trying to stop his efforts to create a more open and stable society. In a paragraph further down on the same page, President Karzai is said to have announced in June (this must be June 2002 or earlier, since the article is dated 11 May 2003) with Judge Shinwari by his side that Afghanistan would continue to follow Sharia law. The fact that this announcement was made by President Karzai has some significance, because it is generally accepted that moves towards a more tolerant society are being led by President Karzai.
(e) The Adjudicator had before him evidence that Sharia law providing for punishments by stoning and amputations had not been applied, at least in Kabul, since the fall of the Taliban. The Deputy Minister of Justice is quoted in the CBN article (page 85 of the Appellant's bundle) as saying that no Muslim is allowed to convert. However, the CBN article also referred to the example of Simon who had converted and who had not reported in the CBN article any actual problems he experienced living in Kabul as a convert. Mr. O'Callaghan submitted that the evidence was that Simon was living underground in Kabul. We do not agree. There is reference to the interview with CBN being a clandestine one. There is reference to Simon fearing that the authorities would find out that he has converted from Islam to Christianity. However, there is nothing which suggests that he is living underground in Kabul. The article indicates that Simon had a subjective fear of being discovered by the authorities. Nevertheless, Simon also expressed evangelical desires. Simon made no mention of any problems he had experienced in Kabul, either from the authorities or from society in general. We acknowledge that the article indicates that Simon had, as at the date of the article, only recently returned from Pakistan to Kabul. However, 1 ½ years have elapsed since that article was written. If Simon had experienced problems in the interim on account of his conversion, one would expect some report of this, at least by the CBN. The absence of any such evidence is itself evidence on which some weight can properly be placed.
(f) The quote from Judge Shinwari (that those found guilty in his courtroom of sharing the gospel could face the death penalty) should be seen within the context of the rest of the article (in particular, the fact that it goes on to give the example of an evangelical convert) and the fact that the CBN is an evangelical network. Accordingly, the Adjudicator could not reasonably have come to the conclusion that Judge Shinwari's reference to those "sharing the gospel" was meant to include even those who do not evangelise but who simply attend church.
(g) Finally, we note that, whilst there is reference in the CBN article to an interview with Judge Shinwari, the full text of the interview has not been provided. We cannot therefore tell whether Judge Shinwari was describing the punishments which could be applied under Sharia law or the punishment which would in fact be applied in his courtroom. He is quoted as saying that those found guilty in his courtroom of sharing the gospel "could" face the death penalty. It is true to say that, under Sharia law, the death penalty "could" be applied. This does not mean that the death penalty would in practice be applied. The article goes on to quote Judge Shinwari as describing the three ways in which non-Muslims are dealt with. On the evidence which was before the Adjudicator, it was not possible to say whether Judge Shinwari was referring to what could be done under Sharia law or what would in fact happen in practice.
(h) Even if Judge Shinwari was referring to what he would in practice do if someone is convicted of a relevant offence in his courtroom, this does not mean that there is a real risk of a convert being subjected to those consequences. It is relevant to bear in mind that there is tension in Kabul between those who would wish to have the full rigours of Sharia law applied and those who would wish a more tolerant society. Page 85 of the Appellant's bundle gives us evidence of that tension. There is clear reference to President Karzai's efforts to create a more open and stable society (see the first paragraph on page 85). There is clear evidence of radical Islamic views. This tension shows why it is relevant to consider whether there is any evidence as to what happens in practice. There is a complete dearth of anecdotal evidence of difficulties experienced by the Christian convert community in Kabul. We appreciate, and bear in mind, that the community is small. Nevertheless, the absence of any such evidence is relevant evidence on which some weight can be placed.
(i) The Appellant is someone who has not said that he is evangelical, or would be in Kabul.
(j) As the Adjudicator reminded himself in paragraph 40 of the Determination, the burden of proof remained on the Appellant, albeit to the low standard for proof.
The CIPU report of April 2004:
(a) We do not consider that there is any inconsistency, as Mr. Saville appeared to suggest, between paragraph 6.93 of the CIPU report of April 2004 (which quotes UNHCDR as saying that there are no Christians in Afghanistan) and paragraph 6.55 of the same report (which refers to a small, extremely low-profile Christian community). The latter is attributed to a 2003 Report, whereas the former is attributed to a 2002 report. We conclude that, whilst there were no Christians in Afghanistan in 2002, there now is a small low-profile community.
(b) Paragraph 6.94 states that the UNHCR Geneva refers to "the risk" continuing to exist for Afghans suspected or accused of having converted from Islam to Christianity. We are not told what UNHCR regards is "the risk" faced and whether "the risk" is "a risk" or a "real risk". There is a further quote from Judge Shinwari in paragraph 6.94. In this quote, he is clearly referring to those who proselytise. Furthermore, there is nothing to suggest the likelihood of someone who proselytises actually being brought to court.
The 2004 Danish Fact-Finding Report (pages 166, 167, 172 and 173 of the Appellant's bundle):
(c) We agree with Mr. Saville that, when pages 166 and 167 are read as a whole, the picture which emerges is that, whilst Sharia law in theory does provide for draconian penalties for apostates and those who proselytise the Christian faith in Afghanistan, this does not mean that such penalties are applied in practice, or that it is reasonably likely that the authorities will take action against an apostate. There is reference to the fact that amputations and stonings have not been carried out in the last two years. We have already referred above to the power struggle between those who would lead Afghanistan to being a more tolerant society and those who are more radical. Further evidence of this can be seen from the final sentence of the fifth paragraph of paragraph 5.2.2 of the 2004 Danish Fact-Finding Report (see the penultimate paragraph on page 166 of the Appellant's bundle), which states that the informal legal system can play an important role in pacifying the fundamentalists. We are therefore fortified in our view that it is important to consider not only what Sharia law states in principle, but what happens in practice.
(d) We once again acknowledge the difficulty posed by the fact that the Christian community in Kabul is very small, and only recently emerged. This is evidence we take into account. It is also relevant, as we have said above, to take into account the absence of any evidence of any problems by apostates in Kabul.
(e) The CCA states (page 173 of the Appellant's bundle) that it is aware of people who have converted from Islam to other religions. It then goes on to state that it assumes that a convert would in the first instance have problems with his own family and social network, which would not accept the conversion, and later that he would have problems with his surrounding community. Taking this evidence at its highest, we make two comments. Firstly, it does not indicate that apostates face ill-treatment which is sufficiently severe as to amount to persecution or Article 3 ill-treatment. In the second place, it does not show that the risk of any ill-treatment is such as to reach the low standard of a reasonable likelihood.
Dr. Wardak's report
(f) Mr. O'Callaghan relied on the fact that Dr. Wardak obtained a law degree in 1978 from a university in Kabul. We make the following points. His curriculum vitae indicates that he is the holder of a B.A. degree in "Law / Jurisprudence", obtained in 1978. In other words, he studied law 26 years ago, when he was 18 years or younger. Since then, he has obtained qualifications in another discipline. He is now a Chartered Psychologist. We do not accept that the fact that he obtained a BA Degree in "Law /Jurisprudence" in 1978 from Kabul makes him an expert on the question of whether an apostate faces a real risk of persecution or Article 3 ill-treatment in Kabul at the present time.
(g) In the third paragraph from the bottom of page 2 of the report, Dr. Wardak states that, since the fall of the Taliban regime and the take-over of the transitional administration, "there has been no significant progress, in the reconstruction of the country ." This sweeping statement is simply not borne out by the objective evidence. It cannot be said that, in Kabul at least, there has been "no significant progress, in the reconstruction of the country". This is evidence of a one-sided view of events. However, and in any event, there is nothing in Dr. Wardak's report which in fact shows that apostates are at real risk of persecution or Article 3 ill-treatment, for reasons given below.
(h) The explanation by Dr. Wardak of the Hanafi school of jurisprudence is useful, as it does indicate that Judge Shinwari, in the quote in the CBN article (on page 85, the reference to the three ways of dealing with non-Muslims) was probably referring to apostates. However, this still does not change our observation in paragraph 13.3 (g) above that we do not know whether Judge Shinwari was referring to what could happen under Sharia law or what would happen in practice.
(i) We now quote the following relevant extracts of Dr. Wardak's report (which begin from the last paragraph on the third page of his report) (we have supplied the paragraph-numbering for ease of reference):
(i) Under the prevailing circumstances, a person accused of apostasy will be regarded as an outcast by the great majority of the fanatical groups commanding a great deal of influence in society. Although people in general do not possess fanatical attitudes towards a wide range of social and religious issues, there is nothing to stop extremist elements from taking the law into their own hands and committing an act of violence. This can happen in the capital as well as in provincial towns and provinces. The killing of the Minister of Aviation in February 2002, in day light under the watchful eyes of the Ministry of Interior and secret police is a vivid example.
(ii) Similarly, the assassination of the vice president, Haji Qadeer in July 2002, in daylight in front of his office is another example, of atrocities committed by the war lords. Furthermore, there have been few attempts on the life of the president, the last of which was a few weeks ago in Paktia province this year .
(iii) Once a person is accused of apostasy, the rumours will gradually reach his/her community. Once the rumours reach the community then the issue will become a matter of public knowledge and will reach many places quickly, which will make the person concerned vulnerable to the consequences. They may also be repercussions to the family of the persons concerned.
(iv) In conclusion, the life of someone accused of apostasy from Islam may not be safe in Afghanistan On a personal level, Mr. Rastah being in a hostile environment with no sociofamilial support, may find it difficult to live and function as a normal person. This may lead to the development of a multitude of psychological problems .
(j) In the first place, we agree with Mr. Saville that the examples of the killings quoted in paragraphs (i) and (ii) do not help us to any significant extent to assess the issue which we have to decide. Dr. Wardak quotes the killings by war lords of persons involved in politics. The political power struggles in Afghanistan are well known. The fact that the Minister of Aviation and the Vice President were killed / assassinated by war lords does not help us decide whether a convert is at real risk of persecution in Kabul, whether or not at the hands of war lords.
(k) The report does not give any anecdotal evidence of problems experienced by any converts. The absence of such evidence is (again) evidence on which we can place some weight.
(l) It is interesting to note what Dr. Wardak himself believes would happen to a convert. Paragraph (i) states that an apostate will be regarded as an outcast by the great majority of the fanatical groups which he says command a great of influence in society. This does not help us to determine the likelihood of a person being regarded as an outcast and the practical ways in which the life of such a person would be affected. Paragraph (i) also states that there is nothing to stop extremist elements from taking the law into their own hands. We note that the reference is to extremist groups. We are not given any indication of the prevalence of extremist groups. The sentence goes on to refer to the commission of "an act of violence" by such extremist elements. The reference to "an act of violence" does not help us to decide whether a convert is at real risk of persecutory ill-treatment. Paragraph (iii) refers to rumours spreading about an apostate. However, even where a rumour becomes public knowledge and has "reached many places very quickly" the apostates is said to be "vulnerable to the consequences". Paragraph (iii) states that "there may also be repercussions to the family". Paragraph (iv) states that the Appellant "may find it difficult to live and function as a normal person". We draw two conclusions from these quotes, even if they are taken at their highest. In the first place, nothing in these quotes indicates ill-treatment which is sufficiently severe as to amount to persecution or Article 3 ill-treatment. In the second place, the risk of any such ill-treatment as described in these extracts is not such as to reach the low standard of a reasonable likelihood.
The appeal is DISMISSED.
Ms. D. K. GILL
Vice President Date: 10 December 2004
Approved for electronic distribution