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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> B. (G.) v. Minister for Justice, Equality and Law Reform & Anor [2008] IEHC 237 (25 June 2008) URL: http://www.bailii.org/ie/cases/IEHC/2008/2008_IEHC_237.html Cite as: [2008] IEHC 237 |
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Neutral Citation: [2008] IEHC 237
2006 No. 969 JR
BETWEEN
APPLICANT
RESPONDENTS
EX TEMPORE JUDGMENT OF MR JUSTICE EDWARDS delivered on the 25th day of June 2008
Now the applicant in this case is a citizen of Afghanistan. He is seeking asylum in the State and has applied for refugee status. The second named respondent in this case, namely the sole member of the Refugee Appeals Tribunal, issued a negative decision in respect of his refugee appeal on 30th May 2006, and the applicant seeks from me leave to apply by way of judicial review to challenge the negative decision of the Refugee Appeals Tribunal. He seeks that leave pursuant to s. 5 of the Illegal Immigrants Trafficking Act 2000.
Anybody who has been around for the last 30 years or so and has been a reader of newspapers or has had even a passing interest in international affairs will be aware in broad brush outline of the history of Afghanistan, at least in recent times. They will be aware that Afghanistan was a monarchy until the early 1970s when there was a coup. Following that coup there was a period of some years of internal civil conflict, culminating in yet a second coup in the late 1970s when a communist group purported to take power. Shortly after the assumption of power by a communist government the Soviets invaded Afghanistan, that was in or about 1979 if memory serves me correctly, purportedly in support of the recently installed communist government.
The Soviet invasion of Afghanistan was vehemently opposed by a resistance movement made up of so-called Mujahideen guerrilla fighters and they opposed the Soviet occupation of Afghanistan for a period of approximately 10 years, ultimately forcing a Soviet withdrawal in the late 1980s. Following the Soviet withdrawal the Mujahideen overthrew the communist government and then various factions within the Mujahideen battled each other for control of Afghanistan, until ultimately one faction, namely the so-called Taliban militia, ousted the others and assumed power in the mid-1990s.
That remained the situation in Afghanistan until 2001. We all know of the terrible terrorist attacks of September 11th 2001, perpetrated apparently by the Saudi militant Osama Bin Laden and his terrorist network known as al-Qaeda. There was a belief in the immediate aftermath of those attacks by the United States and their allies that the Taliban government in Afghanistan was harbouring and indeed supporting Osama Bin Laden, and the United States with its allies launched a military campaign known as Operation Enduring Freedom aimed at toppling the Taliban regime. The Taliban regime was ultimately toppled in late 2001, and in recent years a government under the leadership of Hamid Karzai has been in place in that country. That is a broad brush outline of the recent to the history of Afghanistan, in so far as it is relevant to this case.
This particular applicant claims that he fled Afghanistan in 2004 as a result of a fear of persecution arising primarily from his employment with the Taliban administration prior to their surrender in the town of Kunduz. Kunduz fell to the Northern alliance in November, 2001. I am satisfied that his specific allegations in that regard are sufficiently well-rehearsed in the ruling of the member of the Refugee Appeals Tribunal. While the applicant takes issue with the Tribunal member on certain points of detail, I believe that overall his account is fairly set out and based upon information that was provided by him in the course of being interviewed and questioned in the asylum application process.
It is probably appropriate to recite the detail of his account at this stage. The Tribunal member has recorded it in the following way. She says that the appellant was born on 2nd March 1980 in Wardak province in the Maidan Shar district of Afghanistan. He lived with his mother, father and two sisters. He explained that he lived there until approximately 1997, and that he is a Pashtun and a Muslim. The applicant has had the benefit of 11 years formal education. He is proficient in English and in fact operated his own business teaching English for approximately one year until the Taliban closed down schools in the area, one of which was his own. He is single and has no dependant children.
He explained that following his arrest after a Taliban raid on 20th October 1997 he was imprisoned in the district of Maidan Shar. He was released in 1998 when he was used to provide interpretation services. From then on he worked as an English interpreter with Mullah Noorullah Nori in return for an agreement not to return him to prison. This Mullah finally became the governor of Balkh province and the applicant moved around with him and ultimately moved with him to Mazar-i-Sharif in 2001. He worked with him between 1998 and 2001. He claimed he would be asked to provide interpretive services when anyone from a UN or non-governmental organisation or agency was in the area, and needed to talk with Mullah Noorullah Nori. Otherwise he worked in the office. He claims that he would take down complaints from people and pass them on to the superiors.
He explained that in November 2001 he was given a gun to fight the Northern Alliance after the coalition forces invaded. He was captured as a prisoner of war in 2001, and sent to Shibarghan jail. Now this particular jail was central to a notorious incident, well described in the country of origin information, and generally known of. It seems that after the Taliban forces surrendered in Kunduz in November, 2001 the leader of the Northern Alliance, who at the time was a General Abdul Rashid Dostum, caused a very large number of Taliban prisoners to be transported from Kunduz to this particular prison, known as Shibarghan prison near Mazar-i-Sharif. A large number of Taliban died in the course of the transportation process. They were apparently transported in sealed containers and many of them died from asphyxiation and were buried in a mass grave. This was one of the great atrocities of the ouster of the Taliban by the Northern Alliance in 2001. It is referred to in the Amnesty International report 2003 which was submitted to the Tribunal as part of the country of origin information in this case. It is also referred to in other country of origin submitted in the case and, indeed, is such a notorious and well-known incident that it hardly needs to be particularised further.
In any event, this particular applicant claims that he was amongst those detained at Shibarghan prison, that he was held there for approximately two years and eight months. He claims that he suffered ill-treatment and was beaten severely during his period of detention. He was eventually released. The circumstances surrounding his release as described by him were that his uncle arranged his escape by paying a bribe to his jailers. He pretended he was ill and he was taken to a Red Cross hospital from where he ultimately escaped.
He claimed that he has scars and medical sequelae, if you like, from the beatings and ill-treatment that he received in prison, but up to the time of the hearing before the Refugee Appeals Tribunal he had not produced a medical report. That is a matter of some importance, because a medical report was sent in by his legal advisers subsequent to the oral hearing but before the Tribunal had issued its determination, and that report provided medical evidence that was, on the face of it, consistent with his claims of having been exposed to ill-treatment and beatings. Although it acknowledged receipt of the medical report, the Tribunal subsequently issued its determination without making any reference to it and ostensibly did not take it into account. That is accepted by the respondents in this case. I will return to this aspect of the matter in due course.
In any event, following his release from prison, the applicant fled the country. He claims that he was and is at risk because although he was not personally a member of the Taliban, he is likely to be associated with them by virtue of having worked as an interpreter with a high-ranking Taliban officer. He believes that he would be perceived as having been associated at a fairly high level with the Taliban regime. He believes that if he returns to Afghanistan he could be put back into prison or perhaps, more seriously, that persons anxious to perpetrate retribution against the Taliban, on account of abuses or atrocities committed by them, might target him and that his life may be at risk on account of that.
The applicant also claims that a local warlord named Haja Musa killed his father. Apparently this Haja Musa believed that the applicant's father had been responsible in turn for the death of Haja Musa's brothers. Accordingly, Haja Musa killed his father and the appellant believes that Musa may seek to kill him in turn out of fear that the applicant might attempt to retaliate for his father's death.
That is the factual background to the case in broad outline. Now the Tribunal member held against the applicant believing that the applicant had not demonstrated a well-founded fear of persecution. It is true to say that the Tribunal member did not have the full picture with respect to the applicant's personal story, inasmuch as it would seem that she did not consider the medical report in question. There is also the issue of a photograph which was produced in the course of the proceedings before the Tribunal which was queried by the Tribunal member as having possibly been altered. An explanation for that was submitted to the Tribunal in correspondence subsequent to the oral hearing, and a second photograph was proffered, but again the Tribunal issued its ruling ostensibly without regard to these documents.
In her ruling and determination the second named respondent, that is the sole member of the Tribunal, said the following:
"While I have considerable doubts in relation to the appellant's claim, most notably because of his failure to provide any detail in relation to the events surrounding October and November 2001, other than to give generally available information in relation to the surrender of the Taliban in Kunduz and the subsequent incarceration of prisoners of war in Shibarghan jail, I find there is in any event no objective basis in fact for the persecution he fears.
As already pointed out to the appellant at the hearing, the Danish fact-finding mission to Afghanistan in March/April 2004 concludes that only former members of the Taliban who were guilty of human rights abuses were likely to be at risk within their local community. Low profile or ordinary Taliban members generally do not face problems when integrating into the local community. The report also notes that it is possible for former members of the Taliban (it is acknowledged that the appellant is not one but may have been perceived to be one) to approach the state for protection if necessary, provided that they no longer have any allegiance to the Taliban. The appellant clearly stated that he no longer had any allegiance to the Taliban. He only worked with the Taliban. He lived in his community up until 1997 and never had any problems within his community. It is clear that his community would also have been aware of the closure of his school and his arrest by the Taliban. There is no reason to assume that the appellant joined the Taliban voluntarily, particularly given that he was breaching rules of the Taliban regime in teaching in the manner in which he did.
The appellant stated that the only time he provided interpretive services for the commander was when a foreign non-governmental organisation, for example, a member of the UN, came to conduct work or studies in the area. He would provide the interpretation as between that non-governmental organisation official and the commander. Otherwise he worked within the office taking notes or complaints. The appellant can in no respect be considered to be a high-ranking official or indeed a person with authority. He himself clarified that he never committed any human rights abuses and indeed was never brought in to fight for the Taliban. He claimed that he was given a gun only in November, 2001 purely as a security measure. I note, however, that his evidence in this regard seems to contradict the photo which he provided which puts him firmly in contact with members who are clearly involved in fighting. I have made my observations in relation to this photo above. I do not believe it is genuine. I query why the appellant would provide this doctored photograph. I query why when challenged on it he would refuse to acknowledge that same had been tampered with.
Insofar as the appellant deigns to fear persecution from Haja Musa, I find that this is not persecution based on a Convention ground. He claims to fear persecution from this man because this man killed his father and believes that this man will think the appellant will kill him by way of revenge. The threat of infliction of harm or of death either in retaliation for infliction of injury or death upon another or indeed for fear of retaliation because of the death or injury of another does not constitute a Convention ground. To clarify, the appellant claims he will be persecuted because another believes that he will do a certain act, not because he is of a particular opinion or part of a particular social group. A distinction must be drawn between a claimant who fears persecution because of what he or she does or may do as an individual and a claimant who fears persecution because of his or her membership in a particular social group. It is the membership in the group which must be the cause of the persecution and not the individual activities of the claimant.
In summary, I find that appellant does not disclose an objective basis for the persecution he fears. In relation to the persecution feared from Haja Musa, I find that it is not a Convention-based persecution feared.
The appellant seeks to impugn the ruling of the Refugee Appeals Tribunal on two grounds essentially. They are set out as three grounds in the submissions filed on his behalf, but I would aggregate grounds two and three which are entitled respectively "errors of law" and "lack of fair procedures" and will deal with them under one heading.
The first ground, if I may call it that, is that the Tribunal member failed to take into account relevant considerations. In summary, the considerations that the appellant says the Tribunal failed to take into account were medical evidence of past persecution, the explanations provided with respect to the photographic evidence produced before the Tribunal, the appellant's evidence about the events in Kunduz in 2001, and evidence relating to the nature of the applicant's employment with the Taliban.
In respect of the second ground, the complaint is that the respondent made no real attempt to consider the applicant's credibility in the context of the political situation in Afghanistan and the prevalence of the conduct of which the applicant complained, and that the respondent failed to properly consider the country of origin information before her and, indeed, was selective in her use of country of origin information. There is a general complaint of want of fair procedures.
I have carefully considered the submissions made by the applicant through his counsel and the replying submissions on behalf of the respondents. The applicant's complaints with respect to the failure to take into account (i) the medical report of 9th November 2005 submitted in correspondence, and (ii) the second photograph submitted in correspondence accompanied by an explanation (in so far as explanation could be provided) for the defect in the first photograph, are accepted by counsel for the respondents.
Insofar as the complaint is made that the applicant failed to take into account relevant considerations relating to the surrender of the Taliban in Kunduz in 2001, I am not satisfied that there was any failure in that regard. It is not necessary for a tribunal member to rehearse every line of evidence given by an applicant. I am satisfied that the Tribunal member had an adequate and proper appreciation of the general thrust of the applicant's evidence with respect to what happened in Kunduz in 2001 and his part in that saga. Moreover, I am satisfied that the findings of fact by the Tribunal member with respect to the nature and status of the applicant's position when he was working for Mullah Noorullah Nori were findings made within jurisdiction and open to her on the evidence. So I do not believe that the complaints made with respect to those two aspects of the matter are legitimate.
Although it is accepted by the respondents that the applicant does have a legitimate basis to complain in respect of the non-taking into account of the medical report and of the photographic evidence, the respondents' case is that these failures were not in any way relevant to the ultimate outcome, because the appeal was rejected not on the basis that the applicant was incredible or was not to be believed, but rather it was rejected on the basis that the applicant had failed to establish an objective basis for his fear of persecution and, accordingly, had failed to demonstrate that his fear was a well founded one.
Now the correct approach to be taken by a body such as the Refugee Applications Commissioner or indeed, as in this case, the Refugee Appeals Tribunal is well established. It is set out in the UNHCR handbook on procedures and criteria for determining refugee status. The relevant paragraphs of that particular handbook were recited and adopted with approval by the Supreme Court in the case of V.Z. v. The Minister Justice, [2002] 2 IR 135, and they are recited with particularity in the judgment of McGuinness J. at page 148 of the report. McGuinness J. says:
"Under the heading 'well-founded fear of being persecuted' the handbook gives a general analysis of this crucial phrase. Paragraphs 37 to 42 are particularly relevant and I reproduce them here:
'37. The phrase "well-founded fear of being persecuted" is the key phrase of the definition. It reflects the views of its authors as to the main elements of refugee character. It replaces the earlier method of defining refugees by categories (i.e. persons of a certain origin not enjoying the protection of their country) by the general concept of "fear" for a relevant motive. Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgment on the situation prevailing in his country of origin.
38. To the element of fear - a state of mind and a subjective condition - is added the qualification "well-founded". This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that his frame of mind must be supported by an objective situation. The term "well-founded fear" therefore contains a subjective and an objective element, and in determining whether a well-founded fear exists both elements must be taken into consideration.
39. It may be assumed that, unless he seeks adventure or just wishes to see the world, a person would not normally abandon his home and country without some compelling reason. There may be many reasons that are compelling and understandable, but only one motive has been singled out to denote a refugee. The expression "owing to well-founded fear of being persecuted" - for the reasons stated - by indicating a specific motive automatically makes all other reasons for escape irrelevant to the definition."
Further, I would just refer to paragraph 42 which appears on page 149 of the report in VZ and it is in terms:
"As regards the objective element, it is necessary to evaluate the statements made by the applicant. The competent authorities that are called upon to determine refugee status are not required to pass judgment on conditions in the applicant's country of origin. The applicant's statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation. A knowledge of conditions in the applicant's country of origin - while not a primary objective - is an important element in assessing the applicant's credibility. In general, the applicant's fear should be considered well founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there."
That approach is commented on and to some extent paraphrased, but I think well paraphrased, in the highly-regarded work of Professor Guy Goodwin Gill entitled: "The Refugee and International Law" 3rd Edition. Professor Goodwin Gill says at page 548 of that work, and at paragraph 4.3 of the text, under the heading "Assessing Credibility and Drawing Inferences from the Evidence":
"Refugee claims made by people from different backgrounds raise a variety of issues. The cross-cultural dimension is obvious on some levels, but the decision maker's understanding of credibility is almost always affected by the fact that he or she is dealing with knowledge at greater or lesser remove. Simply considered, there are just two issues: First, could the applicant's story have happened or could his or her apprehensions come to pass on their own terms given what we know from available country of origin information? Secondly, is the applicant personally believable? If the story is consistent with what is known about the country of origin, then the basis for the right inferences has been laid."
In respect of inferences, at page 551 of the text Professor Goodwin Gill says:
"Refugee claims are not like other cases. They rarely present hard facts, let alone positive proof or corroboration. More often than not the decision maker must settle for inferences instead, that is conclusions drawn from the generally inadequate material available. In the absence of hard evidence, the possibility of persecution must be inferred from the personal circumstances of the applicant and from the general situation prevailing in the country of origin. The credibility of testimony is thus both an essential precondition to the drawing of inferences relating to refugee and a matter of inference in itself. Inference in this context does not mean the strict logical consequences of known premises or the process of reaching results by deduction or induction from something known or assumed. Rather, it is the practical business of arriving at a conclusion which, although not logically derivable from the assumed or known, nonetheless possesses some degree of probability relative to those premises."
In this particular case the Tribunal member adopted, I think correctly, the approach advocated by Professor Goodwin Gill. She considered in the first instance: could the applicant's story have happened or could his or her apprehensions have come to pass on their own terms given what we know from the available country of origin information? There are two parts to that. The first is the requirement of considering: could the applicant's story have happened? That relates to the historical past. In this particular instance, this applicant claims to have been imprisoned for two years and eight months by the Taliban, to have escaped from prison and to have fled the country in the fairly immediate aftermath of his escape. He further claims to have been beaten and abused while in prison. In that regard, although she didn't have medical evidence, the tribunal member did have the applicant's own testimony that he was imprisoned and beaten, and available country of origin information undoubtedly confirmed that many Taliban were imprisoned and ill-treated following the fall of Kunduz. While the tribunal member does not confirm it in terms, it is to be inferred that the applicant's account passed the first part of the assessment, namely that it could have happened. While it is true that the tribunal member did express doubts about aspects of his personal story, such concerns could only be relevant to whether the applicant's account did in fact happen, something which was not for decision at that point. She was only concerned at that stage with whether it could have happened not whether it did happen. She was not deciding on his subjective credibility at this point. However, it is fair to say, that she was clearly flagging that if, or when, she came to considering his subjective credibility he might be in some difficulty. In any event she then moved on to the second part and considered whether the applicant's apprehensions could come to pass given what we know from the available country of origin information, namely his concerns that if he returns to Afghanistan he may be imprisoned, or be the subject of retaliatory action by those who were victims of the Taliban in the past. In regard to that issue the tribunal member rightly adopted a forward looking view, as it sometimes called, and came to the conclusion that the applicant's apprehensions were unlikely to come to pass, having regard to what was known about the country of origin.
Coming back to the doubts expressed by the tribunal member about the applicant's story, it is true to say that those doubts might well have been allayed if she had had regard to the medical report, which was submitted subsequently, and indeed to the second photograph and the explanations furnished by the appellant. But even if she had regarded the appellant as entirely believable with respect to what he claims happened to him, and at the hearing before me counsel for the respondent said that they were approaching the case on the basis that it was accepted that there was no credibility issue with respect to the appellant, she would still have had to have been satisfied that his fears as to what might happen to him if he were to return to Afghanistan were indeed well-founded. The tribunal member was not satisfied about that and in my assessment she was correctly not satisfied about that.
Her ruling makes it plain that notwithstanding reservations that she had about his credibility, she was not deciding the case on the basis of credibility. She was deciding the case on the basis that she could identify no objective basis for the appellant's fear of future persecution in the event of him being returned to Afghanistan. She relied principally in that regard on a piece of country of origin information annexed to the Section 13 report produced by the Refugee Applications Commissioner. Complaint was made by the appellant that she overlooked other country of origin information and, indeed, even in respect of the particular piece of country of origin information relied upon, that she quoted selectively from that. I reject both of those contentions. I have read all the country of origin information and while I would have some criticisms with respect to the manner of presentation, I am satisfied that it was open to, and within jurisdiction, for the Tribunal member to arrive at the view that she did.
I would greatly criticize the manner of presentation of the country of origin information in the section 13 report, which was in turn relied upon and quoted in the Tribunal members ruling. I am speaking specifically about the Danish fact-finding mission to Afghanistan in March/April 2004 referred to in the second respondent's determination and ruling. It is quite clear from the manner in which the country of origin information was presented in the section 13 report that the source ultimately relied upon was reported on a third-hand basis. The Danish report is not annexed. Rather it is quoted in another document, only one page of which is annexed to the Section 13 report, and the source and provenance of the other document in question is not identified. The single page annexed does not specify what its source or provenance is. It is impossible to ascertain the context in which the material quoted appears, or whether or not the extract quoted is fair and representative of the overall views of the author(s) on the subject in question. Moreover, upon reading this single unidentified, unsourced and unattributed page which is annexed to the s.13 report, it is seen to quote the Danish fact-finding mission to Kabul, which in turn relies upon an unidentified UNHCR source in support of its views. You therefore have only one page of a wholly unidentified document which in turn quotes an identified source which in further turns relies upon another unidentified, or at best partially identified, source. It is those "third hand quotations" which form the basis for the opinion arrived at by the Tribunal member.
Now that manner of presentation is not satisfactory. It is simply not satisfactory to annex to a Section 13 report a single page from a document which is not identified and which in turn quotes other sources on a secondary basis and indeed on a tertiary basis. I said in the case of D.V.T.S. v. Minister for Justice, Equality and Law Reform and the Refugee Appeals Tribunal [2007] IEHC 451 that a tribunal member is entitled to prefer one piece of country of origin information over another piece of country of origin information in the case of a conflict, but that he or she must justify the preference that is made on some reasonable or rational basis, for example, that the information is the most up-to-date or that the particular source is regarded as being of great reliability as opposed perhaps to other sources the reliability of which is less certain, or for some other good reason.
Has there been an irrational or unjustified preference of one piece of county of origin information in this case. In all the circumstances, and notwithstanding the comments that I have made, I do not think so. Serendipitously, I have done enough of these cases to be able to recognise the provenance of the primary document in question from its layout and presentation, and perhaps the Tribunal member did too. I believe the page in question comes from the UK Home Office Country of Origin Information Report on Afghanistan of April 2005. The layout of these Home Office documents is always in the same format. If, as I believe, the page in question in fact emanates from that source, it is undoubtedly information from a reliable source. Moreover, it is factually the most up-to-date of the country of origin information that was produced in this case. Moreover, this is not a case in which there was clearly conflicting country of origin information of the same vintage. It is particularly important to appreciate that the situation in Afghanistan is highly fluid. All of the country of origin information submitted, which dates from 2001 through to this ultimate document dated April 2005, indicates a rapidly evolving and changing situation, but happily a situation that was changing somewhat for the better. It is therefore clear why the Tribunal member placed reliance upon the April 2005 document, and in the circumstances of this particular case it was not necessary for her to specifically justify doing so in her ruling. Further, I am satisfied that she was not being selective.
The situation in the immediate aftermath of the ouster of the Taliban regime in 2001 was truly atrocious and appalling by any standards, but there has been an improvement in the situation with the installation of the Karzai government and with some degree of order and stability returning to that country. The April 2005 document indicates that by that stage the situation had improved to the point that persons who were associated with the Taliban at a low level were no longer to be considered as being at significant risk.
Paragraph 6.3.6.1 of the document says:
"UNHCR stated that the risk to individual members and military commanders of the Taliban government required careful assessment given the amply documented records of the deliberate attacks on civilians, summary executions, massacres and deliberate and systematic destruction of livelihoods by Taliban forces. The Danish fact-finding mission to Kabul in March/April 2004 reported that according to the UNHCR former members of the Taliban who were guilty of human rights abuses were likely to get into trouble with the local community. However, the source mentioned that low profile or ordinary Taliban members generally do not face problems when integrating in the local community. The Norwegian charge d'affaires pointed out that not all Taliban supporters committed crimes. The source was of the opinion that many ordinary people chose to join the Taliban just in order to get a job and therefore were not necessarily guilty of human rights abuses. The source found that at the present time there was very little persecution going on of Taliban supporters. They have adapted to society and have no problems solely because they are former members of the Taliban."
The document in question also quotes further from the Danish report which again in turn quotes the UNHCR and it says:
"The UNHCR explained that it is most likely that some of the people who earlier supported the Taliban are now living in Kabul and other areas without having difficulties with the existing people in power. However, the UNHCR pointed out that people who are known for having supported the Taliban run the risk of receiving serious threats if they return to the areas of Fareab, Bagdh, Bamean and Gazni in northern, north-western and central Afghanistan. The source explained that the number of acts of revenge relating to the conflicts that aroused during the Taliban period is being carried out. The source knew of episodes where the local population had imposed certain conditions towards a refugee wishing to return whom they believed had committed human rights violations. The source said in this context that the battle of the coalition forces in southern and south-eastern Afghanistan is directed against high-profile Taliban members and al-Qaeda members. In relation to this the source did not know of high-profile Taliban members who had returned to Afghanistan."
There is a further quotation then from an organisation known as UNAMA which is an acronym for the UN Assistance Mission in Afghanistan. It sets out a similar position.
So the most up-to-date information from an undoubtedly reliable source available to the Tribunal member at the time of her determination indicated that, while the situation was by no means perfect, somebody who was in the position of having been associated with the Taliban at low level, either within that organization, or without that organization, could now live and operate in Afghanistan without being persecuted. While certain parts of the country were better than other parts of the country, it would be possible for a person who had been associated with the Taliban to reside there without risk of persecution, provided they were not personally guilty of human rights abuses, or were not Taliban leaders. That was a view which the Tribunal member was entitled to arrive at on the information available to her. It was a rational, reasonable view. It was a view arrived at within jurisdiction. I cannot therefore criticize her for forming the view on the basis of the information before her that there was not a well-founded fear of persecution.
So having applied the objective test and having arrived at that conclusion, it was not then necessary for her to arrive at a final or definitive conclusion with respect to the applicant's credibility. While she did express doubts about his credibility, that was not the determining factor in her decision. The determining factor in her decision was the failure on the part of the appellant to establish a well-founded fear of persecution applying the objective test. It was on that basis that his appeal was rejected.
I am satisfied that the tribunal's decision was, prima facie, lawful. Accordingly, I cannot see any grounds on which it might be interfered with. In the circumstances, therefore, I do not think that there are any grounds on foot of which I could reasonably grant the appellant the relief that he seeks, namely, leave to apply for a judicial review seeking to quash the Tribunal's decision with respect to him. It is regrettable that the medical report was not taken into account and it is regrettable that the second photograph and accompanying explanation was not taken into account, but at the end of the day those considerations were not relevant to the ultimate decision made. The ultimate decision was based on his failure to establish that his claimed fear of persecution was objectively well founded. So I dismiss the application.
Approved: Edwards J.
