The First Tier Tribunal accepted MT’s claim to be a devout Ahmadi who authored and published three academic books on Islam. Although not available in bookshops, the books were given to, and used to preach to people, who were ‘not dangerous’. The Tribunal accepted that MT preached to friends, family and others known to him, but rejected his claim to have preached openly to strangers.
On application of the applicable Country Guideline decision MJ the Tribunal concluded MT was not at real risk of serious harm if returned to Pakistan. MT applied for and secured permission to appeal to the Upper Tribunal primarily on the basis that the First Tier Tribunal had failed to consider and/or apply the Supreme Court decision HJ (Iran) v SSHD  UKSC 31 which is authority for the principle that acting discreetly to obviate the risk of harm will not defeat a claim to protection.
The Upper Tribunal adapted the guidance given by Lord Rodger at paragraph 82 of HJ (Iran). First, it asked whether MT was a devout Ahmadi. That had already been found in his favour. The next question was, if MT were to preach openly on return, would he be liable to persecution in Pakistan? To answer this question the tribunal simply considered what would happen to MT were he to publish to those who were “dangerous”. Here, they referred to paragraph 84 of the CG case MJ and found that he would be at risk. The next question was to consider what MT would do on return. Citing HJ (Iran), there are two possibilities:
“If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution – even if he could avoid the risk by living ‘discreetly’.
If on the other hand the Tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.”
On this aspect, the Tribunal held that MT would do in the future as he had done in the past: preach and publish to those deemed not to be dangerous. The next question was why he would do this? The SSHD submitted that HJ (Iran) simply did not bite because MT found it better and more efficient to do it this way. The Tribunal returned to paragraph 82 (HJ (Iran):
“If, on the other hand, the Tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay [or as in this case Ahmadi] man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution.” [Addition]
The Tribunal concluded that whilst it was true that in his witness statement MT had said that researching and publishing religious materials was the most efficient means of preaching his faith, it went on to find that notwithstanding that fact, “a material reason” for MT’s past discrete behaviour was a fear of what would happen if he were to publish to dangerous people and not, as he had, to friends and family. As such, ‘…the reason the appellant restricted the publication to such persons was that to do otherwise would be dangerous to him.’ Accordingly, the Tribunal allowed MT’s appeal under the Refugee Convention