High Court dismisses judicial review claim against Refugee Appeals Tribunal regarding mixed motives for persecution refusal.

Neutral Citation Number: [2009] IEHC 603

THE HIGH COURT

JUDICIAL REVIEW

2007 1697 JR

BETWEEN

P. E.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND PAUL MCGARRY, REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Judgment of Mr. Justice Patrick McCarthy delivered on the 21st day of December, 2009.

1. By notice of motion dated the 17th December, 2007, the applicant seeks leave to apply for judicial review and in particular an order

of certiorari to quash the decision of the second-named respondent made on 22nd November, 2007 whereby the Tribunal member

affirmed the recommendation of the Refugee Applications Commissioner that the applicant be refused refugee status. The grounds

upon which relief is sought are (i) that the Tribunal member failed to take into account relevant considerations, namely evidence and

country of origin information that supported the applicant’s claim that he was persecuted by reason of his membership of the Hezb-i-

Islami political organisation and (ii) that the Tribunal member erred in law in determining that the applicant did not face persecution for

a Convention reason. The applicant also sought an extension of time.

Background

2. The applicant is a national of Afghanistan. He is of Pashtun ethnic origin and was born in the Balkh region of Northern Afghanistan

on 26th April, 1977. He arrived in Ireland in 2004 and sought refugee status. He completed a questionnaire on 24th September 2004 in

which he stated that he feared persecution on the grounds of race, membership of a particular social group and political opinion. He

claimed that he fled persecution in Afghanistan when an attempt was made to forcibly marry his fiancée to the son of the commander

of Jamiat-e-Islami who was also described as the commander of the region. The applicant claimed that he and his family were

members of another political organisation, Hezb-i-Islami. “A fight occurred between the commander, his son, his body guards and

members of the applicant’s family. The incident claimed four lives, including that of the applicant’s uncle, the son of the commander,

his bodyguard and a friend of the applicant. Following this incident the applicant fled from Afghanistan as he feared the commander

would return and there would be “what he described an armed battle in the village. The applicant’s cousins fled around the same time

and were subsequently killed. Others members of his family fled to Iran.

3. On 11th April, 2005, the Refugee Applications Commissioner rejected the applicant’s claim for refugee status, stating that: “Taking

into consideration the above analysis of the applicant’s claim, it is difficult to ascertain a Section 2 Convention link. It does not

appear that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular

social group or political opinion, rather his claim is based on a fear of returning to Afghanistan because he was in the company of

people who were responsible for killing the commander’s son and bodyguard.” The applicant appealed to the Refugee Appeals

Tribunal. On 22nd November, 2007, the Tribunal upheld the recommendation of the Refugee Applications Commissioner. The Tribunal

member stated that he was satisfied as to the credibility of the applicant, who had presented a coherent and cogent account of the

events leading up to his departure from Afghanistan. However, he was not satisfied that there was any nexus to the Convention in

relation to the applicant’s fear of persecution if returned to his country of origin. The Tribunal member stated:

“The applicant stated at the outset that he feared persecution because of his political or perceived political opinions on

the one hand, or because of his Pashtun background on the other. The applicant spoke of his membership of the Hezb-i-

Islami in support of his contention that this is the reason for the persecution he fears.

Nonetheless, it is clear from the applicant’s own testimony, that the reason why he has encountered difficulties have not

arisen because of his involvement with any particular political grouping (or membership of his tribe), but rather because

of his engagement to his cousin in circumstances where the local commander wished for his son to marry the same girl.

This fact arises not because of the applicant’s political beliefs or opinions, or even because of his ethnic background, but

because of the fact that the girl in question happened to be his fiancée. Thus, the reason why he is liable to be

persecuted was that he or his uncle didn’t want this to occur.

Similarly in relation to his ethnic background, although the applicant did not make a great play of this in the course of his

evidence or in the submissions of his counsel, no information has been provided to substantiate the claim that he has

been targeted for persecution because he is a Pashtun.

I therefore find as a fact that the reason for the persecution is because of the applicant’s personal circumstances in the

context of his marital arrangement, which circumstances arise independently of political beliefs or affiliations or ethnic

group membership. As these personal circumstances do not equate to the reasons set out in the Convention, the

applicant cannot be a refugee if the reason for the persecution feared is primarily based on these circumstances. Whilst

this finding may appear harsh in light of the applicant’s personal circumstances, and indeed the applicant may be in fear

because of this issue, my jurisdiction is limited to the determination of whether the persecution feared is linked to one of

the Convention reasons.”

4. It was agreed by counsel for both sides at the hearing of the leave application that this case raises a net point of law, namely

whether the Tribunal member erred in law in determining that the applicant did not have a Convention nexus for his accepted fear of

persecution.

Extension of time

5. The extension of time sought in this case is three days. The applicant received the decision of the Refugee Appeals Tribunal on

Friday, 30th November, 2007. He contacted his solicitor by telephone on Monday 3rd December with respect to challenging the

decision. A brief was prepared for counsel’s opinion on judicial review. This was sent on 5th December. Counsel’s opinion was furnished

on 10th December. Counsel also requested further information about the applicant for the purposes of drafting proceedings. Draft

proceedings were completed on 13th December and sent to the solicitor for the applicant. The applicant then had to travel to Dublin

to swear the affidavit on 14th December. Counsel for the respondent did not oppose the application for an extension of time. I am

satisfied that good and sufficient reasons have been shown for the delay, which is only three days outside the statutory time limit,

and I accordingly grant the extension of time sought.

Submissions on behalf of the applicant

6. Counsel for the applicant, Colm O’Dwyer BL, submitted that the Tribunal member had failed to consider the political dimension of the

applicant’s claim. On the applicant’s evidence, it was clear that the commander had mixed motives for his persecution of the

applicant, and that the commander was in a position to persecute the applicant because of the applicant’s, and his family’s, political

connections to Hezb-i-Islami. The commander had used his State authority to attack and persecute the applicant and members of his

family. The Tribunal member had erred in law in finding that there was no Convention nexus to the accepted risk of persecution,

having regard to the political dimension of the persecution. Country of origin information submitted by the applicant also supported

the applicant’s claim that members of Hezb-i-Islami may be subject to persecution in Afghanistan. The applicant had given evidence

of his and his family’s involvement in Hezb-i-Islami and this was not disputed by the Tribunal member. His questionnaire clearly

detailed his personal involvement as having served in Hezb-i-Islami for four years. Prior to that, the applicant worked as a cook and

servant with a commander of Hezb-i-Islami. All of his family members were attached to this organisation.

7. Mr. O’Dwyer referred to a large volume of country of origin information which was before the Tribunal member which detailed the

control of regions by war lords and local commanders, and the risk to persons in conflict with power brokers. The country of origin

information also made reference to difficulties faced by persons associated with Hezb-i-Islami. Mr. O’Dwyer accepted that a trigger for

the persecution of the applicant may have been the applicant’s intended marriage to the girl whom the commander wished his son to

marry, but that the applicant faced persecution because of his political association with Hezb-i-Islami. Mr. O’Dwyer pointed out that

the test in refugee law is a forward-looking one, namely whether the applicant will face persecution if returned to Afghanistan. In

addition he relied upon the reference by Professor Hathaway, the leading academic author, to all so-called “but far” test_

“The but for test requires only that a particular level of jeopardy faced by the applicant be linked to civil or political

status, not that the whole of the risk be uniquely associated with that status.”

8. Mr. O’Dwyer referred to relevant case law regarding situations where the motivation for ill-treatment of an asylum seeker is in part

related to non-Convention reasons. He cited the decision of the Federal Court of Australia in C v. Minister for Immigration and

Multicultural Affairs (10 November, 1993), that: “Once there exists the likelihood of persecution which is in part on account of a

Convention based reason, it matters little that the triggering of the persecution is a matter which is extraneous to a Convention

based reason.” He also relied upon the decision of the House of Lords in R v. Immigration Appeal Tribunal and Another ex parte Shah

(1990 2 A.L. 629. Mr. O’Dwyer submitted that the Tribunal member had failed to have regard to relevant evidence, namely, that the

applicant’s political views were a reason for the persecution by the commander, at least in part. He further submitted that the

Tribunal member had applied the incorrect legal test in determining that the applicant did not meet the definition of a refugee under

the Geneva Convention.

Submissions on behalf of the Respondent

9. Counsel for the respondent, Ms. Emily Farrell BL accepted as a matter of law that if the Tribunal member had found that there were

mixed motives for the persecution, one having a Convention nexus, then the applicant would fall within the definition of a refugee.

However, in her submission it was very clear that the Tribunal member had expressly found that this situation did not occur in this

case. With regard to the risk posed by involvement with Hezb-i-Islami, Ms. Farrell submitted that the applicant and his family members

had fled the region due to the dispute with the commander regarding the applicant’s marriage. In his questionnaire, the applicant had

stated that prior to leaving Afghanistan, he was giving donations to Hezb-i-Islami but he had ceased to serve in the organisation. In

his report, the Commissioner placed weight on the fact that the applicant did not refer to membership of Hezb-i-Islami as his reason

for leaving Afghanistan.

10. Ms. Farrell also referred to country of origin information which was before the Tribunal. She referred in particular to the Danish

fact-finding report which noted that the International Crisis Group was of the opinion that Hezb-i-Islami does not exist today as a

political party but as a loose structure of warlords: the risk of persecution in Afghanistan depends on the history of the former

member of Hezb-i-Islami. Ms. Farrell submitted that the commander would be in a position to abuse his authority in order to persecute

the applicant for personal motives regardless of whether or not the applicant had any involvement in a political party. She submitted

that there was no evidence to show that the applicant would obtain protection if he was not involved with Hezb-i-Islami and such

evidence would be necessary before an applicant would fall within the parameters set out in R v. Immigration Appeal Tribunal and

Another (ex parte Shah), [1999] 2 A.L. 629 and Islam v. Secretary of State for the Home Department. On all of the information

before the Tribunal member, it was entirely within his jurisdiction to find that the applicant was being targeted by the commander

solely by reason of his relationship with his fiancé and the gun fight which ended with the commander’s son being killed. The

involvement of the applicant with Hezb-i-Islami was entirely irrelevant to the question of whether or not he was at risk of

persecution.

11. Ms. Farrell submitted that the Tribunal member was satisfied on the basis of all the material before it that the sole reason for the

persecution was because of the applicant’s personal situation regarding his engagement and has expressly excluded the finding that

the applicant was targeted because of his membership or involvement with a political party or membership of his tribe. Ms. Farrell

referred to the judgment of Lord Hoffman in Shah and submitted that there was no evidence in the present case, equivalent to the

evidence in Shah, that the State would not assist the applicant because he is involved with Hezb-i-Islami. Country of origin

information supported the respondent in this regard. The reasons for the persecution and the absence of State protection were to

the effect that such was not due to his involvement with the political party. The absence of State protection can only be relevant if

it is connected to a Convention reason where the persecution itself does not have a Convention nexus. The applicant was not left

without a remedy: he could apply to the Minister for subsidiary protection. The question before this Court was whether the Tribunal

member erred in law in finding that the applicant was not within the section 2 definition of a refugee. Ms. Farrell relied upon the

decision of (Frank) Clarke J. in Lelimo v. Minister for Justice, Equality and Law Reform I [2004] 27 R 178 in support of her argument

that the Tribunal member had correctly applied s. 2 of the Refugee Act 1996. In her submission, the fact that the agent of

persecution was in a position of power or tantamount to the State was not relevant to the question of whether there was a

Convention nexus. The Tribunal member had had regard to all the relevant matters in so far as the Tribunal member specifically

decided that the reason for the persecution was not discriminatory and was personal. Ms Farrell also referred to the applicant’s own

evidence that his cousins had previously worked for Hezb-i-Islami and then for the government in support of her argument that

members of Hezb-i-Islami were not generally at risk of persecution in Afghanistan.

The relevant law

12. This case involves an examination of first principles of asylum law. The definition of a refugee is set out in s. 2 of the Refugee Act

1996, which states:-

“In this Act "a refugee" means a person who, owing to a well founded fear of being persecuted for reasons of race,

religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her

nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country…”

13. The definition of a refugee therefore requires consideration of the reasons for the persecution. It is not enough to face

persecution: it must be connected to one of the reasons assigned by the Geneva Convention (Macdonald’s Immigration Law and

Practice, (6th Ed.), 2005, at para. 12.64). As Dawson J. pointed out in the High Court of Australia in applicant A v. Minister for

Immigration and Ethnic Affairs (1997) 190 CLR 225, at 247-248:-

"By including in its operative provisions the requirement that a refugee fear persecution, the Convention limits its

humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be

epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. And by

incorporating the five Convention reasons the Convention plainly contemplates that there will even be persons fearing

persecution who will not be able to gain asylum as refugees.”

14. The limits of the scope of the Refugee Convention were recognised in this jurisdiction by the decision of Clarke J. in Lelimo. [2004]

2 I.R. 178. In that case, Clarke J. referred to the findings of the Tribunal and stated:-

“From the facts outlined by O’Sullivan J. [in the decision granting leave], it is clear that there are significant grounds for

believing that the applicant may suffer harm if she returns to South Africa. Unfortunately she did not qualify for refugee

status because, in the words of the Refugee Appeals Tribunal, “unfortunately, the assault carried out on the applicant

does not amount to persecution for any reason contemplated by s. 2 of the Refugee Act, 1996 (as amended).” The

undoubtedly correct reasoning behind that decision was that the motivation for the treatment of the applicant was

unconnected with a reason contemplated by s. 2 of the Refugee Act.”

15. Those cases concerned two Pakistani women who had been falsely accused of adultery by their husbands. They sought asylum in

the United Kingdom on the basis that they feared that if they were returned to Pakistan they would suffer persecution in the form of

physical and emotional abuse, would be ostracised and unprotected by the authorities and might be liable to death by stoning in

accordance with Pakistani Sharia law. The House of Lords held that the applicants’ well-founded fear of persecution, which was

sanctioned or tolerated by the State, was for reasons of membership of a particular social group and that, accordingly, they were

entitled to asylum. In the course of his judgment, Lord Hoffman considered the issue of causation under the Convention. It is worth

setting out his conclusions on this point at some length. Lord Hoffman stated, at 653-655:-

“What is the reason for the persecution which the appellants fear? Here it is important to notice that it is made up of

two elements. First, there is the threat of violence to Mrs. Islam by her husband and his political friends and to Mrs.

Shah by her husband. This is a personal affair, directed against them as individuals. Secondly, there is the inability or

unwillingness of the state to do anything to protect them. There is nothing personal about this. The evidence was that

the state would not assist them because they were women. It denied them a protection against violence which it would

have given to men. These two elements have to be combined to constitute persecution within the meaning of the

Convention. As the Gender Guidelines for the Determination of Asylum Claims in the U.K. (published by the Refugee

Women's Legal Group in July 1998) succinctly puts it (at p. 5): "Persecution = Serious Harm + The Failure of State

Protection."

Answers to questions about causation will often differ according to the context in which the question is asked: see

Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd. [1999] 2 A.C. 22. Suppose

oneself in Germany in 1935. There is discrimination against Jews in general, but not all Jews are persecuted. Those who

conform to the discriminatory laws, wear yellow stars out of doors and so forth can go about their ordinary business.

But those who contravene the racial laws are persecuted. Are they being persecuted on grounds of race? In my opinion,

they plainly are. It is therefore a fallacy to say that because not all members of a class are being persecuted, it follows

that persecution of a few cannot be on grounds of membership of that class. Or to come nearer to the facts of the

present case, suppose that the Nazi government in those early days did not actively organise violence against Jews, but

pursued a policy of not giving any protection to Jews subjected to violence by neighbours. A Jewish shopkeeper is

attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he

remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal

scores, but they would not have done what they did unless they knew that the authorities would allow them to act [my

emphasis throughout] with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew.

Is he being persecuted on grounds of race? Again, in my opinion, he is. An essential element in the persecution, the

failure of the authorities to provide protection, is based upon race. It is true that one answer to the question "Why was

he attacked?" would be "because a competitor wanted to drive him out of business." But another answer, and in my

view the right answer in the context of the Convention, would be "he was attacked by a competitor who knew that he

would receive no protection because he was a Jew."

In the case of Mrs. Islam, the legal and social conditions which according to the evidence existed in Pakistan and which

left her unprotected against violence by men were discriminatory against women. For the purposes of the Convention,

this discrimination was the critical element in the persecution. In my opinion, this means that she feared persecution

because she was a woman. There was no need to construct a more restricted social group simply for the purpose of

satisfying the causal connection which the Convention requires.

Mr. Blake, in supporting this argument, suggested that the requirement of causation could be satisfied by applying a "but

for" test. If they would not have feared persecution but for the fact that they were women, then they feared

persecution for reason of being women. I think that this goes from overcomplication to oversimplification. Once one has

established the context in which a causal question is being asked, the answer involves the application of common sense

notions rather than mechanical rules. I can think of cases in which a "but for" test would be satisfied but common sense

would reject the conclusion that the persecution was for reasons of sex. Assume that during a time of civil unrest,

women are particularly vulnerable to attack by marauding men, because the attacks are sexually motivated or because

they are thought weaker and less able to defend themselves. The government is unable to protect them, not because of

any discrimination but simply because its writ does not run in that part of the country. It is unable to protect men

either. It may be true to say women would not fear attack but for the fact that they were women. But I do not think

that they would be regarded as subject to persecution within the meaning of the Convention. The necessary element of

discrimination is lacking: compare Gomez v. Immigration and Naturalization Service, 947 F.2d 660.

I am conscious, as the example which I have just given will suggest, that there are much more difficult cases in which

the officers of the state neither act as the agents of discriminatory persecution nor, on the basis of a discriminatory

policy, allow individuals to inflict persecution with impunity. In countries in which the power of the state is weak, there

may be intermediate cases in which groups of people have power in particular areas to persecute others on a

discriminatory basis and the state, on account of lack of resources or political will and without its agents applying any

discriminatory policy of their own, is unable or unwilling to protect them. I do not intend to lay down any rule for such

cases. They have to be considered by adjudicators on a case by case basis as they arise. The distinguishing feature of

the present case is the evidence of institutionalised discrimination against women by the police, the courts and the legal

system, the central organs of the state.”

16. In order for persons such as the applicant to qualify under the Convention as a refugee it must be shown that either the

persecuting state is acting on a discriminatory basis where the persecution is for convention reasons, and if not for such reasons the

State is unwilling or unable to provide protection because of its discriminatory policy. The latter was the case in Islam and Shah

where the laws of Pakistan were discriminatory against women or the example of Jewish persons in Germany, in the 1930’s and during

World War II. It is clear that either the actions of the persecutor or the failure of State protection must possess a Convention nexus.

One will suffice without the other, but a Convention nexus must, in all cases, be present.

17. The court must be mindful that the decision-maker’s assessment should be an objective one and the goal is to determine the real

reason for the persecution. It is well-established, and indeed was accepted by counsel for the respondents, that where there are

mixed reasons for the persecution, it is sufficient that one of them relates to a Convention ground.

18. Professor Hathaway, has summarised the position relating to the causal nexus in asylum law in the following terms:-

“Most fundamentally, both the language and the context of the Refugee Convention make clear that the required causal

nexus may be established by evidence of the reason for the threat or infliction of harm, for the withholding of State

protection, or simply the predicament faced (whether intentional or not). A Convention ground need not be the sole, or

even the dominant, cause of the risk of being persecuted, but it must be a contributing cause to the risk. The same test

should be applied whether the risk is experienced individually or as part of a group, and whether in war or in peace.”

(Hathaway, “The Causal Nexus in International Refugee Law” (2001-2002) 23 Michigan Journal of International Law 207,

at 209).

19. I am in agreement with this statement of the applicable principles to the question of establishing a Convention nexus. Having

considered the relevant authorities, it appears to me that the relevant considerations in assessing the causal nexus under s. 2 of the

Refugee Act 1996, are the following:-

(i) Not all fears of persecution will entitle an applicant to a declaration of refugee status, pursuant to s. 2 of the Refugee

Act, 1996 (as amended). It must be established that an effective cause of the persecution, or the absence of State

protection, is linked to one of the five grounds covered by the Convention. That is to say, that the risk of persecution

possesses a discriminatory element.

(ii) The decision-maker must objectively assess the reasons for the persecution feared. The decision-maker should

consider the reason in the mind of the perpetrator for inflicting the persecutory treatment. He will then ask if that is the

real reason or if there is some other effective reason.

(iii) A similar analysis will be carried out where the discriminatory element is claimed in respect of the absence or failure of

State protection. The decision-maker will objectively assess the effective reason why State protection is not available to

the applicant.

(iv) Where there are mixed reasons for the persecution, it is sufficient that one of those reasons relates to a Convention

ground. The trigger for the persecution may lack a Convention nexus, but if one of the effective reasons for the

persecution is Convention-related (for example, where State protection is not forthcoming because of a discriminatory

policy of the State), that is sufficient.

(v) It goes without saying that, in conducting this objective assessment of whether a Convention nexus exists, in either

context, the decision-maker must have regard to relevant country of origin information (Horvath v. Secretary of State

[1999] I.N.L.R. at 17, Pearl J.)

20. In the context of this case I feel that I must stress, again, the principles elaborated in Tabbi v. Refugee Appeals Tribunal

(Unreported, High Court, 27th July, 2007) where Peart J. inter alia said:-

“It is not desirable that a decision be parsed and analysed word for word in order to some possible infelicity in the choice

of words and phrases… the whole of the decision must be read and considered in order to reach a view as to whether or

not, when the decision is read in its entirety and considered as a whole, there is a reasonable basis for the decision maker

reaching the conclusion…”

and Imafu v. Refugee Appeals Tribunal (Unreported, High Court, 9th December, 2005) Peart J. said:-

“The Court must have regard to the decision in the round, to the real capacity of the alleged error to have affected the

correctness of the process by which the decision was reached, and also to the discretionary nature of judicial review. In

respect of the latter, it seems to follow that even where the court may be satisfied that there was some error in the

process it can refuse relief. Where it is also satisfied that such errors as did occur did not go to the heart of the decision,

such as would render the decision unlawful.”

The Court’s Assessment

21. I turn now to the application of these principles as stated to the present case. This being an application for leave, s. 5 of the

Illegal Immigrants (Trafficking) Act 2000, applies and the applicant must therefore establish “substantial grounds” for contending that

the decision of the Tribunal member should be quashed

22. The court has considered fully all of the papers submitted in the course of the present application for leave to apply for an order

of certiorari. The court has further had regard to all of the submissions made by counsel on behalf of the parties, including those

made in writing and to the case law cited therein.

23. I do not think that there is any real doubt but that the Tribunal member found as a fact that the reason for persecution is

because of the applicant’s personal circumstances in the context of his marital arrangements and that they arose independently of

politicial beliefs or ethnicity and not for a Convention reason. He went on to say that the persecution feared was “primarially based on

these circumstances”.

24. I stress the importance of not parsing and analysing decisions out of context (or extracts therefrom) in cases of this kind because

it seems to me that what is sought to be done to is infer that there was more than one reason for persecution and, in particular one

where a convention nexus existed because the word “primarily” was used: it seems to me that if one were to reach this conclusion,

one would would have to take that word wholly out of context. I have set out what I consider to be the relevant extracts from the

Tribunal’s decision at para. 3 above, but I think it is worth repeating the conclusion of the Tribunal member where he found as a

fact:-

“…that the reason for the persecution is because of the applicant’s personal circumstances in the context of his marital

arrangements, which circumstances arise independently of polictical beliefs or affiliation or ethnic group or membership.

As these circumstances do not equate to the reasons set out in the Convention, the applicant cannot be a refugee”.

As Mr. O’Dwyer said in the course of the hearing the case he was essentially making under this head was that:-

“… in a nutshell… that he (the Tribunal member) has not really considered the political demension of the case and we

would submit on his evidence there clearly is an aspect of mixed motive in this case, that the commander, while he may

have had personal motivation to get the applicant, as such, or to persecute the applicant, that there was a connection in

the way he was able to do that with the aplicant’s political beliefs and the political beliefs of his family and their

connection to the political group and that the commander clearly used his state authority to attack and persecute the

applicant and members of his family.”

There is no reason to suppose that he failed to have regard to the issue of whether or not there were mixed motives – the proposition

seems to be that because he concluded, on the evidence, that the fear of persecution was for a given or specified non convention

reason there may have been others in the absence of explicit reference to the fact that there were not (and when the principle of

law is to the effect that mixed motives will suffice). I do not think that there is any obligation to elaborate particular principles of law

irrelevant to a conclusion of fact i.e. in this case, principles relating to the existence of mixed motives. Of course if the word

“primarily” was used on a free standing basis without reference to the highly specific words as to his conclusions, there might well be

an argument that, by implication, there was or might have been another reason rendering it necessary to treat of circumstances of

mixed motives. That is not, in my view, the case here.

25. I am accordingly not satisfied that the applicant has demonstrated substantial grounds in respect of this aspect of the Tribunal

members decision: with respect to the issue of whether or not involvement with Hezb-I-Islami or Pashtu origin the Tribunal records

explicitly that on the applicant’s own testimony he encountered difficulties because of the marriage issue. The Tribunal member

further concluded that no information had been provided to substantiate the applicant’s claim that he had been targeted for

persecution because of the format. As facts, accordingly, he held against the applicant on these two grounds and this he was

entitled to do on the evidence.

26. I therefore refuse leave in this case.