OUTER HOUSE, COURT OF SESSION
 CSOH 80
OPINION OF LORD MENZIES
in the Petition of
Judicial Review of
a decision of the Secretary of State for the Home Department dated
Petitioner: Forrest; Drummond Miller, LLP
30 May 2008
 The petitioner is a national of
petitioner arrived in the
petitioner obtained further information.
This consisted principally of two letters from her boyfriend, K.O.,
dated 5 February and
Submissions for the Petitioner
for the petitioner drew my attention to paragraphs 40-42 of the decision
of the Immigration Judge following the hearing on
submitted that the fresh information cast light on this aspect of the
case. The letter from the petitioner's
 Counsel for the petitioner submitted that these documents demonstrated the malign influence of Chief O in three respects - (a) they showed his ability to inflict harm not just on the petitioner or on her boyfriend but on others such as the boyfriend's aunt; (b) there were specific references to his being a well known politician and a wealthy man; and (c) there was a reference (in the letter dated 21 October 2007) to the Chief having put down the petitioner's name "in their occultism as person to sacrifice in appreciation of his new position in the ungodly society." Counsel submitted that in these important respects there was fresh information which had not previously been before the Immigration Judge.
referred me to Rule 353 of the Immigration Rules, while conceding that
these amounted to no more than guidance for those entrusted with the
administration of immigration control.
He referred me to the opinion of Lord Brodie in Anastasia Ndaya 
CSOH 19. Counsel submitted that for
success in the present petition, the petitioner would need to satisfy the court
that in terms of Rule 353 the further submissions for the petitioner
"whilst the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists, must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative, it will have to grant an application for review of the Secretary of State's decision."
 Counsel for the petitioner submitted that it was not clear from
the letter of
Submissions for the Respondent
 Counsel for the respondent accepted that the approach adopted
by the Court of Appeal in WM (DRC)
quoted above was the correct test for the application of paragraph 353 of
the Immigration Rules. The question is
whether the evidence relied on by the petitioner, taken together with the
previously considered material, created a realistic prospect of success. The test is Wednesbury irrationality, considered with anxious scrutiny. She submitted that there was no force in the
submission for the petitioner that the author of the letter of
"The remaining points raised in your submissions, taken together with the material previously considered in the determination, would not have created a realistic prospect of success before another Immigration Judge."
This passage makes it clear that the author of the letter was not deciding the matter for himself, but applying the correct test by considering whether all the material, including the fresh material created a realistic prospect of success before another Immigration Judge.
 The submission dated
 Looking at the information contained in the five letters and
the police report in relation to the critical question of whether it was
reasonable for the petitioner to relocate in
 I preferred the submissions for the respondent to those for the
petitioner. The only issue on which this
fresh information might have been relevant was the issue of the reasonableness
of internal relocation within