England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ASYLUM & IMMIGRATION CHAMBER)
[APPEAL No: AA/03644/2009], [2009] UKUT 82 (AAC)(

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st March 2012

Lady Justice Hallett:

1. The appellant is an Iranian citizen who sought asylum in the United Kingdom in 2009. He claims to fear persecution in Iran because the authorities are aware of his adulterous affair with the daughter of a prominent businessman.
2. The Secretary of State for the Home Department rejected his claim in a decision dated 21 April 2009 and the matter made its way through the tribunal system. It has a chequered history, the details of which I do not need to rehearse. Suffice it to say that we are concerned with but one decision, namely that of the Upper Tribunal (Immigration and Asylum Chamber) dated 10 March 2011.
3. The matter reached the Upper Tribunal ("UT") because Senior Immigration Judge ("SIJ") Taylor had directed a redetermination of the appellant's appeal in these terms:

"The finding that the Appellant has been involved in a relationship with a married woman is preserved. Further findings will need to be made, namely whether the relationship had been discovered in the manner claimed by the Appellant, and if so whether there were any consequences for the Appellant before he left Iran, and if so whether on return he would face real risk of prosecution…"

4. SIJ Lane dismissed the appellant's appeal having found against him on each of those questions. Permission to appeal was granted on a renewed application on a very narrow basis, namely: "the point as to the telephone". This was a reference to one of a number of possible explanations put forward by Mr Nicholson on the appellant's behalf as to how the appellant's affair may have come to the attention of the authorities. He accepted that the appellant's case throughout had been that he did not know how his affair had come to light and the explanations were, therefore, at best speculative.

The telephone point

5. One possible explanation proffered is as follows: the appellant had a business partner whom I shall call "S". He and S had a row about a fraud allegedly perpetrated by S. S threw the appellant out of the appellant's office. The appellant left, leaving his phone charging on the desk behind him. S would have been concerned to find out whether the appellant had informed anyone else about the alleged fraud, or had perhaps been merely curious. He would have picked up the phone to see whom the appellant had recently telephoned by accessing the appellant's recent call list. It is probable that S would have rung the woman. He would have realised who should was, that they were having an affair and that revelation of the affair would be a means to discredit the appellant.
6. Consequently, S would have alerted the authorities and as a result of his "tip-off" the authorities raided his home. This, it was said, happened within an hour or two of the row's taking place. However, the appellant accepted that during the course of the raid the authorities would have found nothing incriminating.
7. The only evidence called before SIJ Lane was that of the appellant. A letter was produced from an aunt in Iran which made some tentative reference to problems the appellant had with S.
8. The SIJ dealt with the possible ways as to how S might have discovered the affair, or why he may have alerted the authorities at paragraph 15 of his determination. In essence, Mr Nicholson's complaint is that the judge addressed only one of the possibilities put before him as to how S may have discovered the identity of the woman and the fact of an affair, namely by simply interrogating the phone. He accepted this was implausible because the phone was unattributed and therefore there could be no question of S's having recognised the number.
9. Mr Nicholson insisted that the more sensible, and in his submission, probable explanation that S had dialled the number should have been addressed. It was not. Further, he criticised SIJ Lane for failing to give any or any sufficient reasons for rejecting the other possible methods of detection and revelation.
10. To my mind there are a number of hurdles in the appellant's path. There were in essence four questions before the judge. (1) Did S discover the identity of the woman by whatever means? (2) If so, did S realise she was the appellant's lover? (3) If so, did he alert the authorities and provoke a raid? (4) Most importantly, would the appellant be of interest to the authorities on his return and therefore at risk?
11. Reading the determination as a whole, which one must, one thing is crystal clear: having considered the totality of the evidence, the SIJ Lane rejected the appellant's account and found adversely to him on each and every one of those questions. The appellant failed at each and every hurdle.
12. The judge found for good reason, in my view, that the appellant had failed to establish that S had discovered his relationship with a married woman in the way claimed. Even if one accepted that S had discovered the identity of the woman from the unattributed number, the appellant had a legitimate social/family reason for having the woman's number on his telephone, (whatever the cultural climate in Iran). Thus, the appellant failed to establish that it was in any way probable that S could have gone on to appreciate that she was the appellant's lover and that he would have then alerted the authorities.
13. The judge also doubted, again for good reason in my view, that the authorities would have responded in the way claimed, on the basis of an unwitnessed allegation, and with such speed. If they had responded in the way claimed, the appellant conceded they would have found nothing incriminating against him. Therefore, the appellant could not satisfy the court he would be of any interest to the authorities in Iran on his return and at risk, whatever S did or did not do with the telephone.
14. It was not incumbent upon the judge to consider each and every possible method of discovery and having considered them all to provide reasons for dismissing them all. Some of them were extraordinarily speculative and they never were the appellant's case. He could not say how S might have discovered the affair. It might have been preferable had the judge referred explicitly to the method Mr Nicholson insisted was highly probable but, had he provided any additional reasons, I have no doubt he would simply have said: "All the possible methods of discovery put before me by Mr Nicholson are equally implausible". Thus, I am satisfied that the SIJ did address the issues put before him fully and fairly and he did provide adequate reasons for his findings. I can detect no error of law.In my view, this is an attempt to appeal findings of fact on the basis simply that they were adverse to the appellant.
15. For those reasons I would dismiss this appeal.

Lord Justice Moore-Bick:

16. I agree.

Lord Neuberger:

17. I also agree. The circumstances in which this court can entertain an appeal on fact are very limited. Any appeal normally has to be on the basis that no reasonable tribunal could have made the findings which were made. In this case, for the reasons given by Lady Justice Hallett, I am satisfied that although, as is true of most judgments, this judgment could have been more clearly and fully expressed, the judge reached conclusions that he was entitled to reach and gave reasons which were sufficiently clearly and fully expressed to justify those conclusions and to make it inappropriate for an appellate court to interfere.
18. Accordingly I too would dismiss this appeal.

Order: Appeal dismissed