H-BR-V4

		MA (Procedure Rules 45 & 46) Pakistan [2004] UKIAT 00330	
Heard at Field House			
On 22 October 2004			

IMMIGRATION APPEAL TRIBUNAL

                                                                              Date Determination notified:

                                                                                     31 December 2004	

	Before:		

Mr D K Allen (Vice President)
Mrs J A J C Gleeson (Vice President)
Mr C H Bennett 
	
Between	

	
		APPELLANT	
			
	and		

SECRETARY OF STATE FOR THE HOME DEPARTMENT
	
		RESPONDENT 	

DETERMINATION AND REASONS

1.	The Appellant appeals to the Tribunal with permission against the Determination of an Adjudicator, Mr D C Gerrey, in which he dismissed his appeal against the Secretary of State's decision of 26 August 2003 issuing directions for his removal from the United Kingdom and refusing asylum.

2.	The hearing before us took place on 22 October 2004.  Mr S Khan of Khan and Partners appeared on behalf of the Appellant, and Mr S Underwood appeared on behalf of the Secretary of State.

3.	The Appellant's claim is set out in his SEF, which he confirmed to the Adjudicator was completed on the basis of his own instructions and he confirmed that he was happy with the contents.  When asked why he was applying for asylum in the United Kingdom he referred to two kidnappers by name and a terrorist group belonging to the Taliban and the MMP who demanded money of him and when he refused they attacked him with guns and he was admitted to hospital on 28 January 1990.  He said that they were influential people and that they had registered a murder case against him and he was arrested by the police but the court released him on bail in 1990 and they went to the High Court against this decision and they attacked him again in 1997.  When asked who was responsible for ill-treating him he referred to the Taliban, the MMA, the army, the Dubango group and the Dolat group.  When asked why he believed this treatment occurred he said that they kidnapped people for money and "share each other."  He said that they had tried to kidnap his sons and attacked his house twice, in 1990 an 1997.  He said that they were supported by the MMA and the army and his life was under threat so he decided to leave the country.  He had moved to Lahore and when they came to Lahore he moved to Karachi but they were always after him.  He referred to having been involved with the Awami National Party and that he had attended a lot of meetings and rallies.  

4.	At C5 he gave further details.  He referred to the Pakistani military, the MMA, the Taliban and the Dolat group and Dubango groups as being those whom he feared.  He said that the Dolat group and the Dubango group kidnapped people and were terrorists and had come to his house in Peshawar and asked for money and he had refused and they had opened fire on him.  After his release from hospital he was arrested by the police on a false murder case and released on bail after three months.  He said that he was attacked again in 1997 and injured by bullets and he told the police but they did not register his case because the other party were influential and supported by the military, the MMA Government and the fundamentalist groups.  He said that they went in the High Court against the District Court decision and threatened him that he would receive a life sentence from this court and if not that they would kill him and he had decided to leave because his life was under threat.  

5.	The Appellant told the Adjudicator that at interview some matters were left out.  He said that he had affiliations with the political party and there were many things which he had not mentioned and they were not mentioned because he was not familiar with the procedure.  He said he had handed over documents but not all of them because he only had those which had been provided at the time.  

6.	At the hearing before the Adjudicator, the Appellant when asked whether he could return to Pakistan said that there was an appeal against him pending in the High Court and he had been declared to be an absconder.  He claimed that the MMA, the party opposed to him, was in collusion with the present government and it would be very difficult for him to return to Pakistan.  It was put to him that he had already been acquitted once in a court of law and he said that was because he was supported by his own party and now the government was no longer his party if they could not support him.  

7.	The Adjudicator considered the evidence and accepted that the Appellant was involved in a dispute with the two terrorist groups over money and that he was involved in a shooting incident on 28 January 1990 as a result of which both he and his attackers lodged FIRs.  His attackers made a complaint of murder as a result of which the Appellant stood trial but was acquitted in a judgment delivered on 30 June 1997.  The Adjudicator accepted that there was evidence to confirm that the Appellant was indeed shot and injured on that occasion and again in an incident on 1 January 1997 in respect of which he registered a second FIR.  He considered that this was no worse than an attempt to frighten the Appellant.  

8.	The Adjudicator noted that, the Appellant having left Peshawar in December 1998, the first adverse attention thereafter from his enemies was in September 2000 when there was an attempt to abduct his children in Lahore which was prevented by students and police.  Although he said that he was traced to Karachi by his enemies some time in 2002, he gave no detail of any specific incident.  He also gave no evidence of incidents concerning his claimed fear of the Pakistan military and the Taliban and only by inference suggested that the MMA were behind the activities of the two terrorist groups.  There was minimal objective evidence concerning the MMA and certainly no evidence to support his assertion that they actively or passively supported terrorist groups.  The Adjudicator found it surprising that if the Appellant’s enemies were able to track him down on two occasions the authorities were not able to do so and enforce the warrant.  This suggested that they had no particular interest in enforcing the warrant.  The Adjudicator considered that there was little evidence of a claim to be at risk on political grounds and that the only adverse attention he had suffered was from members of two terrorist groups.  He did not accept that the adverse attention which the Appellant had suffered from criminal elements was politically motivated.  He was satisfied that the police offered and afforded protection with regard to the criminal charge in that they accepted the FIR in respect of the second shooting and prevented the abduction of the Appellant’s children in September 2000.  This satisfied him that there was a sufficiency of protection available for the Appellant against any criminal activities by his enemies in Pakistan.  He did not accept that there was a serious possibility of him facing an unfair trial procedure should he face a further trial, and taking into account the objective evidence it indicated quite clearly that the higher levels of the judiciary were regarded as independent and above corruption.  

9.	It is clear from paragraph 6 of the hearing that the Appellant sought to rely upon a newspaper cutting but it had not been served on the Respondent and the Adjudicator excluded it, having regard to the provisions of Rule 48(6) of the Immigration and Asylum Appeals (Procedure) Rules 2003.  It is also recorded at paragraph 8 that there was what is described as a heated exchange between Mr Khan, who appeared for the Appellant below, as he did before us with the interpreter as to whether the latter was correctly interpreting what the Appellant said.  The Adjudicator indicated that he was not prepared to allow unseemly exchanges to take place and mentioned that he had had experience of this particular interpreter in a number of appeals.  

10.	In the grounds of appeal it is contended that the interpretation was flawed in that the interpreter was not translating the Appellant’s statement word by word and this was contrary to Section 6 of the Human Rights Act.  It is also submitted that the Adjudicator was in error in refusing to accept the documentation put in at the hearing.  It is said that the human rights findings are flawed and that there is a real risk of persecution on return.

11.	The Vice-President who considered the application focused on Rule 48(6) which is couched in absolute terms.  He questioned whether the Adjudicator might not have considered the documentary material under Rule 48(5) rather than under Rule 48(6) and questioned whether it could not be said that in any event under Rule 48(6) the material was made available to the Respondent in the sense that it was there for him to take account of had he provided a Presenting Officer at the hearing which he did not.

12.	At the hearing before us Mr Khan contended first of all that there was a problem with the interpreter who had not interpreted the answers properly and had tried to simplify them.  He contended that there was more that the Appellant wanted to say but he did not get the chance to say it.  With regard to the Appellant’s wife’s evidence the Adjudicator had simply noted that she had confirmed her statement at paragraph 11 of the Determination whereas she had said more than that.  

13.	As regards the documents tendered at the hearing these were the two newspaper cuttings and the court notice which had been attached to the grounds of appeal and were in the bundle.  He referred also to the expert report which had been put in.  He contended that the Pakistani judiciary are not independent of the Executive and they would try to please the government so there was every chance that the Appellant might not get a fair trial in the High Court.  He would not be able to present any witness and it was all in the discretion of the Judge and the parties’ submissions.

14.	According to the new statement from the Appellant he had had the documentation two days before the hearing but it had not been put in until the day of the hearing.  He contended that the Adjudicator should have adjourned the hearing in order to give a proper opportunity for the case to be presented.  Alternatively, Rule 48(5) should have been employed.  The Appellant had not been given the opportunity to explain all his claim in detail due to the problems with the interpreter.

15.	In his submissions Mr Underwood referred us to a Determination of the Tribunal in AK [2004] UKIAT 00103.  This assisted the Appellant, but he argued that the Adjudicator had concluded in the alternative to his other findings at paragraph 25 that even if the appeal against the Appellant’s acquittal was still outstanding he had not shown that he would not receive a fair trial if the appeal ever came to court.  There was therefore no material difference.  If there was another trial, on the Adjudicator’s findings that would be fair.  

16.	With regard to the issue of the conduct of the hearing, Mr Underwood contended that nothing had essentially been missed from the Adjudicator’s consideration.  It was for the Appellant to put his case in statements before it came to the appeal stage and the hearing was too late to raise such matters.  It was clear that the issues of the MMA and the Taliban were not the main basis of his claim.  There were cursory references only to these at D9 and D19.  The expert report had only been put in in June 2004.  This was a case to which the decision of the Court of Appeal in CA applied, but the report would not make any difference anyway, and in any event there was no error of law.  There would not be a flagrant denial of the Appellant’s Article 6 rights.  

17.	By way of reply Mr Khan contended that the Determination was not in accordance with the Rules.  The Adjudicator had not considered the Appellant’s objections made during the hearing.  The case had not been done properly by the previous representatives.

18.	We consider first the issue involving concerns about the interpreter at the hearing.  We have noted above what the Adjudicator had to say about this.  The Appellant has put in a witness statement dated 6 September 2004.  At paragraph 6 he states that he remembers vividly that on numerous occasions, questions were put to him again and again and he found that the interpreter was unable to translate those answers properly and that this was pointed out by his representative to the Adjudicator who had not only ignored his objection but asked him not to say anything in the future.  He states that the proceedings went ahead but with difficulty as the interpreter was unable to translate accurately what he was saying. 

19.	The Appellant did not go into any detail as to what aspects of his claim were not put forward as a consequence of deficiencies in the interpreter if such there were.  It may be that it is to be found in paragraph 8 where he reiterates his claim that he is a member of the Awami National Party and because of his association with it he has been targeted and harassed by the MMA and civil and military agencies of Pakistan.  The difficulty with this is that it does not sit well with what he stated in the SEF and at interview.  As we have noted above, he is recorded by the Adjudicator at paragraph 7 of the Determination as stating that the SEF was completed on the basis of his own instructions and he was happy with the contents.  There is no challenge to that.  In the SEF at question 1 when he was asked to explain why he was applying for asylum he referred specifically to the two terrorist groups which he said belonged to the Taliban and the MMP and who had demanded money from him and when he refused they attacked him with guns.  When asked why he believed this treatment occurred he said it was because they kidnap people for money and shared each other (we take that to mean that they share the money out).  He listed the Taliban, the MMA, the army and the two terrorist groups as the people he regarded as responsible for his treatment, but he clearly expressed the motive for this as being money.  This can be seen again at C5 where he refers to the terrorist groups coming to his house and asking for money which caused them to open fire on him and led to the ongoing problems.  He states that the other party were influential as they were supported by the military, the MMA Government and the fundamentalist groups.  No evidence appears to have been provided at any stage to substantiate that contention.

20.	Nor do we see anything in the Appellant’s wife’s statement to    indicate what evidence she was unable to put forward that might have made any material difference.  She said that she did not understand the language of the interpreter at the hearing although she belongs to a Pashto speaking family and cannot speak any other language.  There is no detail given as to any matters that she was not able to put forward which she would now like to be considered.  

21.	We accept that there were perceived problems with the interpreter at the hearing.  We have not had the benefit of a statement from the interpreter and therefore we do not think it is right for us to come to any concluded view on this point.  We can say no more than that there were difficulties as the matter is recorded at paragraph 8 of the Adjudicator’s Determination.  We do not however consider that it has been shown that any problems that there may have been with the interpreter have in any sense damaged the Appellant’s ability or that of anybody else to give evidence on his behalf and clarify the issues before the Adjudicator.  The Appellant has had the opportunity as has his wife in their most recent statements to indicate what matters were mistranslated or not properly put forward.  They have not done so and as a consequence we consider that the Adjudicator’s Determination cannot be said to be flawed in this regard.

22.	We turn to the question of the Adjudicator’s refusal to admit documentary evidence at the hearing.  The reference at paragraph 6 is to a newspaper cutting, although we are told that there were two newspaper cuttings and also what is described as a proclamation requiring attendance of the accused at the Peshawar High Court, which is dated 23 April 2003.  As Mr Underwood suggested, this appears to be a continuation of earlier documents requiring the Appellant’s attendance at the court.  

23.	Mr Underwood very properly put before us the Determination of the Tribunal in AK which deals with Rule 48(5) in which we find the following at paragraph 13.  

	“Whilst there may be individual cases in which it would be right for an Adjudicator to exclude material, or potentially material, evidence on which a party (normally the Appellant) wishes to rely by reason of the failure by that party to find or serve the evidence in time, nevertheless as a general principle, the requirement to ensure that justice is done in appeals requiring the most anxious scrutiny will in most cases outweigh the understandable desire on the part of the Immigration Appellate Authority to ensure that its directions and the provisions of the Procedure Rules are not flouted with impunity.”

24.	There is also reference at paragraph 11 to the qualification in the closing words of the sub-paragraph as relating to good reasons for considering the evidence and not good reasons as to why the evidence was not filed or served in time.  The Adjudicator appears to have given no consideration to the application of this Rule but simply excluded the evidence on the basis of the wording of Rule 48(6) which states as follows:

	“Subject to Section 108 of the 2002 Act, an Adjudicator or the Tribunal must not take account of any evidence that has not been made available to all the parties.”

25.	As the Vice-President who granted permission to appeal in this case commented, Section 108 is not relevant to this case.  

26.	The wording of sub-section 6 is clearly mandatory, whereas the opportunity exists under sub-section 5 for evidence not filed or served in accordance with time limits in the Rules to be considered by an Adjudicator or the Tribunal, if satisfied that there are good reasons to do so.

27.	We doubt that the draftsman of the Rules was considering the particular situation of non-appearance of one party when drafting sub-paragraph 6 but was more likely considering the situation where evidence is produced after the hearing.  On the face of it the Adjudicator would appear to have been entitled to exclude consideration of the evidence under sub-paragraph 6, but on this we would make two comments.  Firstly it is the case that he failed to consider sub-paragraph 5 and the relationship between those two sub-paragraphs and which he ought to apply and why.  Secondly we consider that on a proper consideration of the two he could and should have come to the conclusion that, as was suggested by the Vice-President who granted permission, the evidence produced at the hearing by the Appellant was made available to all the parties in the sense that it was produced at the hearing and it was there for the Secretary of State’s representative had there been one present to comment on it and make representations on it accordingly.  In the absence of a representative of the Secretary of State at the hearing before the Adjudicator, we do not consider that the Adjudicator properly acted under Rule 48(6) in excluding consideration of the evidence produced at the hearing before him.

28.	That might seem to be an end of the matter, as we understood from Mr Khan that he was seeking remittal in this case since we had made it clear to him that given the light of the Adjudicator’s findings it was not realistic for him to expect the Tribunal to allow the appeal outright.

29.	We have however been persuaded by Mr Underwood’s argument that in any event the error by the Adjudicator in this regard is saved by paragraph 25 of the Determination.  In that paragraph the Adjudicator, though he clearly had reservations as to whether the warrant originally received in 1999 was still outstanding, considered that even if the appeal against the Appellant’s acquittal was still outstanding, he did not accept that he would not receive a fair trial if the appeal ever came to court.  We consider that he was entitled to conclude that the claim essentially involved fear of the two terrorist groups who had demanded money.  The evidence did not support the contention that there were political undertones to this.  There was little mention of this in the evidence which the Appellant had given in the SEF and at interview.  The Adjudicator had noted the objective evidence concerning the MMA at paragraph 22 of the Determination.  As the Adjudicator properly noted there, the only evidence concerning the MMA in the Country Report was a reference to the legislature of North West Frontier Province, dominated by the Islamists Six Party Coalition MMA unanimously passing a Bill to implement Sharia law in the province.  There was no corroboration for the assertion that the MMA either actively or passively supported terrorist groups.  There was no evidence concerning incidents involving the military or the Taliban.  It was only a matter of inference that he suggested that the MMA were behind the activities of the two terrorist groups, and, as the Adjudicator concluded, the evidence in that regard was lacking.  As we have noted above, there is nothing in the more recent statement of the Appellant or that of his wife to indicate that relevant aspects of his claim to substantiate the claimed political aspect were not able to be put forward at the hearing before the Adjudicator.

30.	The Tribunal considers the Adjudicator’s findings at paragraphs 24 and 25 to be sound.  Among other things he noted that the only problems the Appellant experienced were from members of the two terrorist groups who demanded money and shot him.  His report was noted by the police and he stood trial and was acquitted.  The attack upon him was neither encouraged nor condoned by the authorities.  The police had accepted an FIR in respect of both shooting incidents and were able to prevent the abduction of his children in September 2000.  The evidence was clear that there was a sufficiency of protection available to the Appellant.  The Adjudicator was also entitled to conclude that on the objective evidence, even if the warrant concerning his failure to appear at the appeal against his acquittal was still outstanding,  he would receive a fair trial in this regard.  We have of course taken into account the evidence in the bundle from Mr Qazi concerning, among other things, the judiciary in Pakistan.  He does not however deal with the specific situation of what the Appellant would face in the High Court in Peshawar.  As the Adjudicator noted, the objective evidence shows that the higher courts are generally regarded as independent and fair.  We have some concern that Mr Qazi appears to think that the District Co-ordinating Officers retain powers as he refers to at page 2 of his report, yet, according to Amnesty International, referred to at paragraph 5.32 of the Country Report, in August 2001, the Office of District Commissioner/District Magistrate was eliminated.  There is specific reference at paragraph 5.30 to the higher level of the judiciary being considered to be competent and generally honest.

31.	Accordingly we consider that the Adjudicator’s conclusions are sustainable.  Albeit there was an error of law in his failure to admit the evidence submitted on the day, that was not a material error of law because even had he taken that evidence into account it could and would not have made any difference to his decision in our view.  The evidence that was produced consisted of newspaper reports concerning the Appellant and a shooting incident in 1997 which refers to the Appellant as an active member of ANP who has participated greatly in election campaigns and was a target for the Mullahs for the last several years.  It is hardly consistent with his claim that he was being pursued by two terrorist groups for money.  The second newspaper item concerns the requirement that the Appellant attend the Peshawar High Court with regard to the appeal against his acquittal, and the other document is a proclamation requiring his attendance at that court.  As we have noted above, the Adjudicator made his alternative findings as if his attendance at the court were required, and considered the objective evidence properly in this regard.  We have already noted our conclusions on the former that it is clearly inconsistent with the essential nature of the Appellant’s claim, and we do not consider that the Adjudicator was in error in assessing that claim as being essentially to do with the fear of terrorists who wished to extort money from him rather than having any political connotations of any significance.

32.	This appeal is therefore dismissed.  	     

D K ALLEN
VICE-PRESIDENT