England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Thursday, 25th January 2001

1. LORD JUSTICE MAY: This is a renewed application for permission to appeal against a decision of the Immigration Appeal Tribunal, nominally refusing permission themselves to appeal, that decision having been made on 4th August 2000. The application was refused on paper by Lord Justice Brooke on 28th November 2000. I shall return to what he said in a moment.
2. It is also necessary for the applicant to apply for an extension of time. The necessary extension of time is not entirely insignificant, being between 4th August and the date of the application in November 2000. I take the view that, if I were of the view that this was a proper case for giving permission, the delay would not be such as to countervail that.
3. The applicant is Iranian. He was born in Tehran on 1st July 1968. He was educated and employed there. He has parents and three brothers who continue to live in Iran. He himself left Iran some time in late 1994. He arrived in the United Kingdom on 29th June 1995, having apparently spent some eight months in Pakistan and a month in Singapore. He applied for asylum and was interviewed in substance on that application on 28th July 1995. His claim for asylum was rejected by the Secretary of State in a letter dated 15th June 1998. He lodged an appeal. The appeal was heard and dismissed by a special adjudicator on 30th March 1999. On 7th April 1999 the Immigration Appeal Tribunal refused leave to appeal.
4. There was an application seeking permission for judicial review against that refusal, which was granted by Mr Justice Collins on 23rd August 1999. The matter then returned to the Immigration Appeal Tribunal, without further judicial review proceedings upon that application, by consent. On 24th July 2000 the Immigration Appeal Tribunal dismissed the appeal, having considered its substance. Permission to appeal to the Court of Appeal was sought and, as I have said, refused on 2nd August 2000. It is against that refusal that permission to move for judicial review is now sought.
5. The facts of the matter can conveniently be taken from the Immigration Appeal Tribunal's determination. As Mr Jones, I think rightly, points out, the Immigration Appeal Tribunal was in large measure accepting the factual account which the applicant had given. What the tribunal said was as follows:

"11.The appellant experienced problems with the authorities as a consequence of a stop and search by revolutionary guards at a checkpoint at a time when he was travelling with 3 friends in a private vehicle returning from a trip to the Caspian Sea. The search revealed that one of his friends was in possession of an anti-regime pamphlet, as a result of which all of the occupants of the car were beaten and their valuables seized, and they were taken into custody. On the subsequent day he and his friends were produced before a court, where it was directed that they be imprisoned as opponents of the regime until a decision could be taken on how to proceed. The appellant spent six months in detention, during which time he was said to have been subjected to beatings and interrogations. At his initial interview he said that he was released when the authorities found out that the paper belonged to only one of his friends and not all of them. He said that after he was released his life was closely monitored and he was told that he could not be with his friends or do what he wanted.

12. He provided greater detail subsequently. At B10 of the respondent's bundle he is recorded as saying that his family paid the equivalent of £30,000 as a guarantee to free them, and they were bailed not exactly so they would be free, but to monitor them to find out who was the leader and who they came and went with. At his family house they found a youth magazine from the days of the Shah and used this in the statement against him. He said that after he was freed they took their rights from them, they could not travel anywhere and could not study or work or go out in public or see each other. Anywhere there was a fight or any trouble they would come round to their house and interrogate them and find out where they had been. Also when he was at home his family were worried about him. In addition, they searched the house of the person who had the pamphlet and found a rifle and a knife there. He also said that part of the agreement when they were free was that they had to go once a month and sign at the Central Committee, and if they wanted to travel outside Tehran they had to get permission from the Local Committee.

13. Ms Vidal [who appeared for the applicant on that occasion] agreed that what happened to the appellant after his release did not amount to persecution per se. We agree entirely with this view. She argued that two major adverse facts was the fact of the appellant being returned from the United Kingdom and the fact that he had been away for six years. There was the fact of the past persecution to be taken into account as part of this also. She drew our attention to the poor human rights record of Iran.

14. At page 17 of the appellant's bundle, in the US State Department Report on Iran for 1999, it is stated that the Government's Human Rights record remains poor. Systematic abuses included extrajudicial killings and summary executions, disappearances, widespread use of torture and other degrading treatment, reportedly including rape, harsh prison conditions, arbitrary arrest and detention and prolonged and incommunicado detention. Ms Vidal invited us to accept that one could fairly conclude from this bad human rights record that the appellant would face a hostile interrogation. The difficulty with this, in the view of the Tribunal, is that there is no evidence beyond the speculative to indicate that the appellant would be of interest to the Iranian authorities on account of having been in the United kingdom, having been absent from Iran for six years. No doubt conditions after he was released from custody were disagreeable, but it is, we think, common ground that they did not amount to persecution. There is no indication in the evidence however to say that records are kept on persons such as the appellant with a history such as his for what it is, nor any indication that he would be of any interest to the authorities on return to Iran. No doubt an adverse political opinion was imputed to him for a period of time, but at the end of that time the authorities very largely accepted that they had got it wrong and retained an interest in him only to the extent of the kind of monitoring and restrictions that we have described above. The fact that Iran has a poor human rights record does not in our view show a reasonable degree of likelihood that this appellant, given what has happened to him, would face a serious risk of persecution on return to Iran.

15. We find that the appellant has not made out his case even to the lower standard of proof appropriate to asylum cases."

6. The written grounds of appeal (prepared, I think, by Mr Jones) are in these terms:

"1.The IAT's determination is flawed in law, the evidential assessment engaged and standards of proof embraced being inconsistent with those recommended by authority. Further, the IAT adopt an internally inconsistent and irrational approach to the said issues.

2. Additionally, given their pervasively affirmative findings of fact, the IAT arrived at irrational conclusions as to risk, and erred in law in failing to characterise the Applicant's experiences post release as persecutory.

3. In all events, the IAT's decision is rendered perverse, material considerations having been omitted from the decision making process."

7. Lord Justice Brooke refused permission in these terms:

"This was very much a matter for the specialist tribunal to assess. They took into account all the relevant factors and they made an evaluation of their cumulative effect, as required by Karankaran. There is no real prospect of success on an appeal, in my view."

8. Mr Jones has prepared a very careful and detailed submission. He refers to the legal framework, in particular by reference to the decision of this court in Karankaran [2000] INLR 122. He cites parts of the judgment of Sedley LJ, in particular this passage:"Testing a claim ordinarily involves no choice between conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the appellant's case ... decision makers, on classic principles are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and - sometimes - specialised knowledge of their own (which must of course be disclosed). No probabilistic cut off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision maker ultimately makes of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the Convention issues."
9. Mr Jones refers at some length to the publication by Professor Hathaway, "The Law of Refugee Status". He also draws my attention to the decision of this court in Demirkaya [1999] INLR 441 on the subject of the relevance of past persecution to an assessment of future risk.
10. The essential submission which he makes, both in writing and orally before me this morning, is that the Immigration Appeal Tribunal failed properly to perform its reviewing and evidence assessing function and that their conclusion is according unreliable. He submits that the facts found constitute a substantial acceptance of the account given by the applicant. They include a period of six months' detention and serious physical abuse on account of a mere association with someone apparently having political views contrary to that of the Iranian authorities. He submits that the Immigration Appeal Tribunal did not properly weigh all the relevant evidence and that past persecution is relevant to an assessment of future risk.
11. He submits that assumptions which appear to have been made as to whether or not this applicant would be of interest to the Iranian authorities if he were to return to Iran cannot be sustained and cannot properly form the basis of the decision to which the Immigration Appeal Tribunal came. As I have quoted, they said that there was no evidence beyond the speculative to indicate that the applicant would be of interest to the Iranian authorities if he were to return there. The submission is that the fact that, as the Immigration Appeal Tribunal themselves record, that would be speculative is putting the cart before the horse and not carrying out a proper assessment of all the material, as required by this court in Karankaran. As to the generality of that, Mr Jones has a number of specific points.
12. I am not persuaded that this decision, read as a whole, is flawed in the way that Mr Jones would have it. The speculation as to what would, or might, happen on the applicant's return was not put on one side as being irrelevant because it is speculative. It was, as I read this determination as a whole, rightly characterised as speculation, separate from anything else, but it was, in my view, properly and clearly taken into account.
13. The written submissions suggest that the determination had what Mr Jones refers to as "conspicuous flaws". He submits in writing that the tribunal's assumptions as to the persistence of risk were founded upon misapprehension and omission of certain key considerations. He suggests that the conclusion that the Iranian authorities had lost interest in the applicant was not sustained by a proper review of the accepted evidence. He suggests that the stringency of the restrictions placed upon him when he was released and the persistence of their imposition over a protracted period undermines the Immigration Appeal Tribunal's findings as to risk. He says that they failed to consider that his flight from Iran was a flagrant contravention of the conditions imposed on his release. The Immigration Appeal Tribunal had not taken properly into account, or taken into account at all, the fact that copy summonses which had been issued consequent upon his flight from Iran were produced in support of his claim. Those summonses have been provided to me this morning, both in copy original form and in translation.
14. Mr Jones suggests that the Immigration Appeal Tribunal failed to give sufficient consideration to the fact that bribery had been used by members of his family to obtain his release from detention. He says that the applicant's account that he was produced before a court on his initial arrest and that a further court appearance was anticipated was not expressly considered. He suggests that no consideration was given to the assertion as to the length of his absence from Iran. The written submission also suggests that the restrictions under which he was placed after his release from detention were capable of being considered as persecution; but Mr Jones has realistically accepted that it is not easy to make that submission when Ms Vidal had expressly accepted before the tribunal that they did not.
15. It is clear that, for practical purposes, all of the matters which Mr Jones has mentioned, and to which I have just referred, are contained in the Immigration Appeal Tribunal's written determination. For instance, it is clear that the sum of money paid by his family (which is referred to by Mr Jones as bribery) is explicitly referred to in paragraph 12 of the determination. Paragraph 11 of the determination explicitly refers to the fact that, after his detention with his friends and after he was taken into custody, he was produced before a court. In addition, paragraph 13 specifically refers to the emphasis placed by Ms Vidal on the relevance of the fact that he had been away from Iran for six years. Mr Jones has agreed this morning that, yes, these matters are part of the narrative which the Immigration Appeal Tribunal give of the facts, mainly in paragraphs 11 and 12 of their determination. But his point is that, when it comes, in paragraph 14, to a consideration of the case as a whole, these matters are not referred to, are not considered and are not analysed, so as to be taken properly into account in the assessment of risk which is made.
16. Mr Jones submits that the restrictions under which he was placed after his release from custody were not insignificant and did not indicate a loss of interest by the Iranian authorities; although, as I have said, he accepted that he could not impugn this decision of the Immigration Appeal Tribunal on the basis that those restrictions amounted themselves to persecution. He submits that the Immigration Appeal Tribunal has not sufficiently taken account of expert and other material indicating that the authorities in Iran are a regime preoccupied with suppression and a regime that does not lightly let go of those who are associated with opposition to it. But in the end the submission is the general one that, taken as a whole, this assessment of the evidence is, as Mr Jones would have it, a bad assessment of risk and one which does not take account of all the matters that should have been taken into account, to which I have referred.
17. Mr Jones refers me to a decision of the Immigration Appeal Tribunal in the case of Fotuhi (29th March 2000), in which an Iranian associating with a different organisation was successful in what the Immigration Appeal Tribunal referred to as a "borderline" case. I, of course, take that into account, but it is right to say that in these matters each case has to be determined on its own particular facts.
18. Looking at the matter in the round, as I think in the end one has to, I am not persuaded that this is a decision of the Immigration Appeal Tribunal which can properly be impugned. Read as a whole, this assessment of the evidence was, I think, proper and balanced and was carried out in accordance with the task set out in Karankaran. The tribunal have, in my view, recorded and taken into account the substance of all the matters relied on. I do not think it is a proper criticism of this determination to say that matters which plainly are taken into account in paragraphs 11, 12 and 13 are not properly assessed because they are not again specifically referred to in paragraph 14.
19. In addition, it cannot be a proper criticism of a determination of this kind if the determination takes account of, and concentrates on, the matters which by way of submission are put before it. It does seem to me that paragraph 14 of this determination addresses adequately the matters that Ms Vidal was raising and relying on in paragraph 13, she having accepted that the things which happened to the applicant and the restrictions placed upon him after his release from detention did not in themselves amount to persecution.
20. As I say, in the end one has to gather together all the details that Mr Jones has relied on and make a judgment as to whether this is or is not a flawed determination. I do not think it is. I agree with Lord Justice Brooke. I refuse this application.
Order: application dismissed; public funded assessment.