IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
[AIT NO. HX/03935/2004]
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE CARNWATH
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|SECRETARY OF STATE FOR THE HOME DEPARTMENT||DEFENDANT/RESPONDENT|
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MR N GARNHAM QC and MR J SWIFT (instructed by Treasury Solicitor, LONDON, SW1H 9JS) appeared on behalf of the Respondent.
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"1. The phraseology of some of this determination is obscure, as the grounds assert and it is arguable that the adjudicator has given insufficient reasons for some at least of his findings.
2. The alternative finding that being lashed as a punishment is not contrary to Article 3 of the ECHR is also arguably wrong in law."
"Normal alignment … there has been remodelling since the previous fracture."
"… his account was of a fracture which had not been treated, not an old fracture with subsequent 'remodelling' which implies treatment. A car mechanic, dealing with heavy machinery, may get a broken arm in a number of ways other than torture, and we note that the fracture site was not visible on the x-ray."
"The Tribunal reserved its determination for postal delivery which we now give. We remind ourselves that we are debarred from interfering with an Adjudicator's finding of fact unless they are perverse or unsustainable at the level of error of law. In relation to this Adjudicator's determination, we consider the findings of fact to be sound and far from perverse. The documentary evidence was vague and did not support the appellant's account of the number of lashes to which he would be subject on return. The medical evidence is late, and indicates a treated fracture too old or slight to show clearly on the x-ray. The Adjudicator's consideration of credibility was sound and this appeal was therefore bound to fail. If the core account is rejected, then there is no question of Article 3 and the sentence to 99 or 120 lashes on return; there is no conviction and in consequence no risk engaging Article 3 or the Refugee Convention."
"28. Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of a story, and the story as a whole, have to be considered against available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).
29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:
'In assessing the general human rights information, decision-makers must constantly be on their guard to avoid implicitly recharacterising the nature of the risk based on their own perceptions of reasonability.'"
"'An English judge may have, or think that he has, a shrewd idea of how a Lloyds Broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ships' engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibl[y] assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even - which may be quite different - in accordance with his concept of what a reasonable man would have done."
"… the tribunal of fact need not necessarily accept an applicant's account simply because it is not contradicted at the relevant hearing. The tribunal of fact is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole".
He then added a little later:
"… while a decision on credibility must be reached rationally, in doing so the decision maker is entitled to draw on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible".
"Credibility findings can only really be made based on a complete understanding of the entire picture placing the claim into the context of the background material regarding the country of origin."
"… the holy order of the Islamic Republic and for disturbance of national and internal security, in cooperation with seditious and anti-revolutionary groups". (see page 39 of the appeal bundle)
Anti-revolutionary groups are to be regarded, effectively, as anti-state groups in Iran.
"The Secretary of State accepts that section 8 should not be interpreted as affecting the normal standard of proof in an asylum/human rights appeal. There is nothing in the wording of the Act that requires (or indeed permits) such a result. The effect of section 8 is simply to ensure that certain factors relating to personal credibility are taken into account when that standard of proof is applied. The weight and significance of those factors will vary according to the context and the precise circumstances of the behaviour."
"The clause will not force a deciding authority to give undue weight to any of the factors it lists; it will merely ensure that all these factors are considered in a systematic and transparent way."
Order: Appeal dismissed.