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IAT ex parte GHOLAM-SHEHNI, R v. [2000] EWHC Admin 400 (12th October, 2000)

Case No CO/1317/99
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
DIVISIONAL & ADMINISTRATIVE COURT LIST.
Royal Courts of Justice
Strand, London, WC2A 2LL
Date 12 Oct 2000

Before:

MR. JUSTICE GOLDRING

R E G I N A
-v-
IAT
Respondent

ex parte
GHOLAM-SHEHNI
Applicant

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MS. F. KRAUSE (Instructed by Messrs. Woolcombe Beer Watts) appeared on behalf of the Applicant.
MR. J. SWIFT (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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Judgment

As Approved by the Court
Crown Copyright

The application
1. The applicant is 29. He was born in Iran. He entered the United Kingdom on 3 August 1994. He claimed asylum on 5 August 1994. The Secretary of State refused his claim in a letter dated 5 March 1997. His appeal to the Special Adjudicator was dismissed by a determination on 13 December 1998. Leave to appeal to the Immigration Appeal Tribunal was refused on 19 February 1999. The applicant seeks judicial review of that refusal. He does so by permission of the Court of Appeal (following a hearing at which the Respondents were not represented), applications for permission having previously been refused both on paper and at an oral hearing.
The Secretary of State's refusal
2. The basis of the application was set out in a long statement dated 20 September 1994. Its contents were summarised in the Secretary of State's refusal letter of 5 March 1997 (page 69). In paragraph 2, the Secretary of State stated that
"The basis of your claim is that you suffered continuous harassment in Iran because of your own and your family's political beliefs. You claimed that you and your family were Monarchists and that you were a supporter and clandestine activist with a group of four. You distributed leaflets which covered the news of the day which had been oppressed by the regime."
3. In paragraph 3 the Secretary of State referred to events which the applicant said occurred in 1988 and 1989. In 1988 the Revolutionary Guard arrested and subsequently executed the applicant's brother. On 6 July 1988 the Revolutionary Guard came to the house. The applicant was told of his brother's arrest and execution. The applicant attacked the Revolutionary Guard. He was arrested and detained at Separ Barracks until 11 January 1989. He was questioned and ill treated. He was released after it was discovered that he had no connection with his brother's activities and after the payment by his father of a bribe. He was made to sign an undertaking that he would not participate in any political activity. He was warned that if arrested again for political activities he would be imprisoned for a year without charge, after which the Revolutionary Guard would decide his case. The applicant said he took this to mean he would be executed.
Given the submissions made concerning jurisdiction (see below), I should quote paragraphs 4 and 5 in full.
4. Paragraph 4 states,
"You stated that during your military service [which was served in the Revolutionary Guard] you met a man called Iraj who helped you write slogans against the regime. On completion of your military service [in November 1993] you were introduced to two others by the names of Aliakbar and Kavoss. You became part of the four man cell and continued with your political activities. You continued with your activities until 4 June 1994 when you were told that two of your group Iraj and Aliakbar had been seen by the Revolutionary Guard distributing leaflets. They tried to escape but Iraj had been shot dead and Aliakbar was captured. You therefore decided you must leave Iran."
5. Paragraph 5 states,
"Your activities within your unnamed group of four were of a particular low level. You remained in Iran six years following your arrest [in 1998]. You were released from detention [on 11 January 1989] without charge and completed your military service. The Secretary of State was therefore of the opinion that you were not experiencing any harassment by the authorities and does not find it credible that you should still be of continued interest to the authorities if you should return to Iran. Furthermore you were 24 year[s] old when you left Iran. You had very limited work experience after finishing your education and military service. You were unmarried and had no children. You had very limited incentives to remain in Iran and the Secretary of State is not satisfied that these were not the factors which pointed to a motivation other than your claimed fear of persecution in Iran for coming to the United Kingdom."
Mr. McKenzie's skeleton argument for the appeal before the Special Adjudicator
6. The applicant was to be represented at his appeal by Mr. McKenzie. It was listed for 11 December 1998. On 12 November 1998 Mr. McKenzie sent a bundle of documents and a skeleton argument to the Clerk to the Adjudicator, copies to the "Home Office Presenting Officers' Unit." (Page 79)
Again, given the submissions regarding jurisdiction, I should quote from the skeleton argument.
7. Paragraph 3 states,
"It will be noted that the Secretary of State's refusal letter does not question the truth of the appellant's account. No attempt is made to suggest that the appellant was not detained in 1988-89, or that he was not involved in clandestine activities. The sole focus of the refusal letter is the relevance of these facts to [the applicant's] present fear of persecution."
8. Paragraph 4 states,
"In a letter to the Refugee Legal Group of 19 May 1998, the Home Office confirmed that "We would simply not challenge, either in the reasons for [the] refusal letter or at the appeal, anything that we believed or found to be credible. It is our view that...we are only obliged to tell [an asylum applicant] when we do not believe him. In a letter to Asylum Aid of 5^th October 1998, the Home Officers' Unit confirmed that "all matters on which the caseworker has relied on reaching a decision should be included in the [refusal letter]. On the basis of this, it is submitted that these aspects of the appellant's case are unchallenged facts and should be taken to be common ground between the parties."
9. There was no response to that letter before the hearing.
The hearing before the Special Adjudicator
10. There is a long and detailed determination. From it, it is clear, among other things, how each side put its case and the evidence the Special Adjudicator heard. Given the many issues raised in this application, it is necessary to consider some aspects of it in detail.
The Special Adjudicator's summary of the oral evidence
11. At paragraphs 8.4 to 8.13, the Special Adjudicator summarised the applicant's oral evidence. It consisted primarily of cross examination by Miss Perry. The following is material for present purposes.
The applicant's family in Iran
12. "His father died last year. His mother, one brother and four sisters all lived together in the family home. He had two further brothers and a further sister also living in Iran. None of them were (sic) involved in political activities because they were under observation. His brother...who had been killed had been an active supporter of the Mujahadin. The remainder of the family were Monarchists." Paragraph 8.5
Events in Iran
13. "He had become involved with Iran at the beginning of his military service...He never allowed himself to keep the leaflets because he knew at any minute they could come and search him. They did not have any particular name for their group...after completion of his military service he returned to his home town. Iraj lived in the same town. He continued distributing the leaflets during his work as a cab driver...he believed his family were still under surveillance. He did not keep the leaflets at his home...surveillance included telephone tapping and their house being searched. He also noticed that when at other places he saw unfamiliar faces looking strangely at him. He was not being followed but believed he was being checked on...it was on 4 June 1994 that Aliakbar was captured and Iraj shot. He thought it would be unsafe to stay because he knew that Aliakbar had been arrested and believed he would be tortured in order to get the names of his associates." Paragraphs 8.7-8.10
Activity in the United Kingdom
14. In a further statement submitted for the appeal, the applicant spoke of his involvement in anti Iranian protests in the United Kingdom. He said he was a member of the Constitutionalist Movement of Iran ("CMI-FL") and the International Iranian Refugee Organisation-Britain Branch ("IRR-B"). He attended meetings of both. He regularly attended demonstrations at which photographs were taken (paragraphs 8.2-3).
15. There was evidence from a witness called Mr. Bahar about the IRR-B. He said its object was "to defend asylum seekers and their rights in this country [and] to explain and educate people in Iran to the situation in their country." (Paragraph 8.21)
16. The applicant agreed with Miss Perry's suggestion "that membership of [the Constitutionalist Movement] was likely to place his family in danger." In re-examination he referred to two photographs in the bundle. "These showed the appellant participating in two demonstrations. [He] stated that the first...related to a demonstration opposite the Iranian Embassy on the anniversary of the Revolution last month [November]. The second...was taken opposite the BBC in Holborn on 1 October 1998...The photographs had been taken by members of his group for the purpose of publishing them in newspapers and showed the leaders of the group.
The letter from Arasch
17. One of the documents submitted on behalf of the applicant was letter said to have been written to the applicant by the "Secretary of Arasch Member of the Central Committee of the Iranian Constitutionalist Organisation." According to the document, Arasch is the name of a legendary Persian patriotic hero. The letter was apparently written on 5 August 1994. It speaks of the Committee having been informed of the applicant's emergency escape from Iran "through our underground contacts inside the country." It also states "We tried hard to trace you, yet it took us a long time, and now we are aware that you are safe under the legal protection of the democratic country of England." (Page 95)
18. The suggestion was that the applicant was a member of Arasch or of the CMI-FL.
The Amnesty International letter
19. Among the documents submitted to the Special Adjudicator was a letter dated 28 January 1998 from Amnesty International to Mr. McKenzie. Among other things, it states,
"Mere suspicion of involvement in illegal political activity, or even association with someone suspected of being so involved, is sufficient to warrant arrest and unlimited detention without charge or trial. The relevant question is whether [the applicant] has come to the attention of the authorities.
You asked for comments about the risk on return to Iran of someone who had been outside of the country for a long and unauthorised period of time. Over a period of many years Amnesty...has received numerous reports of persons returning to Iran after prolonged absence abroad and being interrogated upon arrival in Iran and such interrogation leading to arrest and detention. We have so far been unable to verify these reports, but in view of the systematic repression of even suspected political opposition in Iran, there is clearly a risk that a returnee will be regarded with suspicion by the authorities and hence arrest and detention. In our view, a suspicion on the part of the Iranian authorities that a returnee has applied for asylum outside Iran can only serve to heighten the risk of him...becoming a victim of human rights abuses....I have spoken to our researcher at the International Secretariat for information about the Constitutionalist Movement of Iran. While she knows of no specific instances of persecution of its members her advice is that activity on its behalf would attract the same sort of response from the authorities as activity for other opposition parties...Without knowing the particular circumstances of your client's case we are unable to give any opinion about the risks on return." (Page 110)
How the cases were put
21. In paragraph 9 of the Determination, the Special Adjudicator carefully summarised the respective submissions. He referred to the documents put before him and the submissions made about them.
The Secretary of State
22. Among other matters raised by her, Miss Perry, on behalf of the Secretary of State "indicated that she relied on the reasons in the refusal letter. Although the written skeleton argument submitted on behalf of the appellant suggested the respondent was not challenging the credibility of the of the appellant's account, such credibility was challenged and she asked me to make an adverse finding....She submitted there was no evidence to support the appellant's claim that he was a member of a group distributing leaflets...She submitted that if the appellant was of interest to and being watched by the Republican Guard, as claimed by him, it was unlikely he would have been able to distribute leaflets." Paragraphs 9.1 and 9.2
23. In short, the Secretary of State was challenging the veracity of the applicant's account of events in Iran before he left.
24. As to events in the United Kingdom, the Secretary of State submitted that if they did occur, they were motivated by his desire to enhance his claim and he should not be allowed to benefit as a result. (Paragraphs 9.4 and 11.2)
25. Reference was also made to the latest Country Assessment of Iran. It indicated "a movement in Iran towards greater openness and cultural rapprochement with the West, and an intention to loosen constraints on freedom of expression." (Paragraph 9.5)
How the applicant put his case
26. The skeleton argument set it out. There was reliance on the documents submitted. Mr. McKenzie submitted that the events in Iran formed the background to the activities in the United Kingdom. He said that the appellant took precautions when distributing leaflets in Iran. People in Iran did resist the regime (in spite of the conditions there). What the applicant did could not be regarded as low level.
The findings
27. The Special Adjudicator accepted it was likely that the authorities would have "a continuing interest in" the members of the applicant's family because of their political views and background. He drew a distinction between "interest in" and "persecution of." He did not think it "reasonably likely" that one would follow the other. "On the appellant's own account, he was well aware of the authorities continuing interest in him. However he undertook his military service with the Revolutionary Guard." (He rejected a complaint of mistreatment when in the Guard because of his political views). (Paragraphs 11.3 and 11.4)
The distribution of leaflets in Iran
28. He rejected the applicant's account of involvement in the distribution of leaflets, both when in the Revolutionary Guard and afterwards. "In view of the appellant's evidence of his belief that he was under surveillance, and in particular in view of the difficulties he would have had in undertaking such activities when during his military service, I am unable to make a finding of fact in favour of the appellant that it is reasonably likely he was involved in the distribution of pro-Monarchist leaflets." Paragraph 11.5
29. Having rejected the account concerning the distribution of leaflets, the Special Adjudicator inevitably rejected his claim that he would be known to the authorities because Aliakbar, a fellow distributor of leaflets, would reveal it on interrogation following his arrest. As the claim of persecution was based upon that, the applicant's claim, so far it was based upon events in Iran could not succeed. (Paragraph 11.7)
The letter from Arasch
30. "There is no documentary evidence to support the appellant's claim that he was a member of Arasch, or a subsidiary of that organisation. I have grave doubts about the letter from Arasch...The appellant arrived in this country on 3 August 1994. It appears the letter was written on 5 August 1994. The timing of the appellant's departure from Iran and arrival in this country is inconsistent with the indication in the letter...that it had taken them a long time to trace him. In any event, the letter does not say he is a member." (Paragraph 11.6)
Activities in the United Kingdom
31. The Special Adjudicator rejected the applicant's claim that because of his activities in the United Kingdom, he would be of interest to those in Iran. He gave a number of reasons.
32. First, there was no evidence that those in Iran were being persecuted. He said,
"Many members of the appellant's close family, who on his own account are known by the authorities to be Monarchist sympathisers continue to live in Iran and there is no evidence that they are now being persecuted or harassed..." He rejected a letter written by the applicant's brother for the hearing as being self supporting. He also said "On his own account [the applicant's father] has been politically active against the authorities [in] Iran for a far longer period that the appellant claims to have been. However he remains living in Iran and there is no claim that he is being persecuted." (Paragraph 11.9)
33. It is agreed that the Special Adjudicator was wrong regarding the applicant's father. As he states in paragraph 8.5, the father died in 1997.
34. Second, he plainly doubted the applicant's account of his activities in the United Kingdom. The applicant in evidence did not appear to know the date of the Iranian revolution which the demonstrations were meant to mark. (Paragraph 11.10)
35. Third, he did not think the photographs were taken, as claimed, "for the purpose of publishing them in the newspapers, [see paragraph 8.13], but were "taken to show the appellant has attended such demonstrations for the purpose of this appeal. (Paragraph 11.11)
36. Fourth, he was sceptical regarding the membership card of one of the organisations (the CMI-FL) the applicant claimed to belong to. (Paragraph 11.12)
37. Fifth, on the evidence, the activities of the other organisation (the IRR-B) to which the applicant said he belonged was "likely to be much less objectionable to the Iranian authorities than those of the CMI-FL. The letter from Amnesty International...not only states that it has been unable to verify reports of persons returning to Iran after prolonged absence abroad being interrogated upon arrival and subsequently arrested and detained but also states that research shows there are no specific instances of persecution of members of CMI-FL." (Paragraph 11.13)
38. Sixth, "Even if I were to find as being likely that the appellant was an active supporter of CMI-FL, and having considered all the relevant background documentary evidence that has been drawn to my attention and also taking into account the fact that many close members of his family are living in Iran without there being any evidence of harassment or persecution against them, I am unable to find as being reasonably likely that if the appellant were now to return to Iran he would be of sufficient interest to the authorities to result in him being treated in a manner amounting to persecution." (Paragraph 11.14)
39. In short, the Special Adjudicator concluded the applicant had failed to discharge the burden of proof upon him.
The Immigration Appeal Tribunal
40. It put the matter shortly. "The Adjudicator heard oral evidence from the Applicant and others. He made a full and careful analysis of the evidence and made specific factual findings supported by this analysis of the evidence. The grounds essentially attack the adjudicator's approach to the evidence and the weight he gave to it- but that is his function. Manifestly, he did not accept all he was told." (Page 172)
The arguments advanced before me
41. The areas of challenge by Mr. Taghavi on behalf of the applicant fell into two parts. First, he challenged the special adjudicator's findings regarding what happened in Iran. Second, he challenged his findings regarding the United Kingdom.
The findings concerning Iran
Jurisdiction
42. The submission was this. The Special Adjudicator had no jurisdiction to make findings of fact regarding the distribution of leaflets by the applicant in Iran. He could not do so because of the terms of the Secretary of State's original refusal letter. The submission (as I finally understood it) appeared to come to this. Paragraphs 4 and 5 of the Secretary of State's letter did not challenge the applicant's claim of distributing leaflets in Iran. It merely said that such distribution amounted to low level activity. It was not open to the Secretary of State in the hearing of the appeal for the first time to challenge the veracity of the account. The letter amounted to a concession that the account was true. Alternatively, veracity regarding this issue not in terms having been raised in the letter, it could not be raised for the first time at the appeal hearing.
43. In support of his propositions, Mr. Taghavi relied upon the those references in the authorities which state that the Secretary of State, on an appeal, should not go behind a concession or finding of fact which is favourable to the applicant: for example the comment of Ward LJ in Sukinder Kaur v Secretary of State [1998] Imm AR 1, at page 6. He also relied upon the absence of a response to the applicant's skeleton argument prior to the hearing.
44. Mr. Taghavi also drew my attention to the decision of the Immigration Appeal Tribunal in the case of Ahmed Carcabuk and Kouame Barthelemy Bla and Secretary of State for the Home Department, of 18 May 2000. The two appeals raised the same issue. As Collins J, who presided, put it, "In what circumstances (if at all) may an adjudicator or tribunal make adverse findings concerning the credibility of an appellant when the Secretary of State has not sought to impugn it?" That of course was not the case here, certainly as far as the appeal was concerned.
45. In the course of the judgement Collins J underlines says this. "It is not uncommon for a refusal letter to recite the history given by the applicant but to make no findings since the view is taken that even if the account is accepted, there is no well founded fear. It is often said in sort of case that the...applicant lacks credibility, but that does not mean that the applicant's account of what happened to him is rejected. Equally, it does not mean that the Secretary of State has accepted it all as true; it has not been necessary to make any specific findings of fact." (Page 2, paragraph 5 of the judgement)
46. That was the position here. This is not a case of a concession or finding of fact favourable to the applicant.
47. Moreover, had there been a concession such as that suggested by Mr. Taghavi, it would not necessarily bind the Secretary of State on the appeal. I agree with the observations Collins J makes at page 5, paragraph 11.
48. On the face of it therefore, there was no reason why the veracity of the applicant's account should not be called into question before the Special Adjudicator. Does the absence of response to Mr. McKenzie's skeleton argument affect the position?
49. Clearly, the matter having been raised in the skeleton argument, a speedy response indicating that veracity was in question, would have been desirable. However, that is not an end to it. The position was made quite clear at the hearing. It elicited no response. In particular, there was no request for an adjournment. Even now, Mr. Taghavi cannot sensibly suggest how the applicant was prejudiced by the way matters proceeded. He cannot sensibly suggest how the evidence presented on his behalf would have differed. That is fatal to any submission that the lack of response to Mr. McKenzie's skeleton prevented the Secretary of State raising the issue of veracity at the appeal.
50. In my view, the Special Adjudicator did have jurisdiction. There was no irregularity. It is not necessary for me to consider submissions made as to whether or not this was raised in the notice of appeal to the Immigration Appeal Tribunal.
The finding that it was not reasonably likely the applicant would have politically active in Iran
51. Mr. Taghavi attacks the Special Adjudicator's finding, as expressed in paragraph 11.5 of the determination (paragraph 28 above). He submits the finding was crucial to the outcome of the case. I agree. He submits, that no reasonable fact finding tribunal would conclude that it was not reasonably likely that a person who is under surveillance would ever be politically active. The Special Adjudicator should have considered the applicant's individual case: whether this applicant would have been politically active in spite of the surveillance and danger. He submits many people in Iran are active, in spite of surveillance. Having considered this aspect, he should have given reasons for his conclusions. I add: I understand it was in relation to this point that leave was given by the Court of Appeal.
52. Ms. Anderson, on behalf of the Secretary of State, submits the Adjudicator was not doing what Mr. Taghavi says. This finding needs to be considered in context. The context she submits, was this. The applicant said his family was not involved in political activities because they were under observation: paragraph 8.5, page 154. He dealt with the nature of the surveillance because the Special Adjudicator had specifically asked him: paragraph 8.9, page 155. When the Special Adjudicator expressed the views he did in paragraph 11.5, he had in mind what the applicant had said about the nature and extent of surveillance taking place. He was not therefore expressing abstract views. He was considering this case in the context of the evidence he had heard. That was perfectly permissible.
53. I agree. The Special Adjudicator was considering the facts of this case and this applicant's evidence when he made the findings he did.
The error about the father
54. The father was dead at the time of the hearing. The Special Adjudicator made an error about that: see paragraphs 32, 33 above. I can take this point shortly. The error seems to me immaterial. If so it does not affect the lawfulness of the decision: see Manzeki v Secretary of State for the Home Department [1997] Imm AR 524. It is not suggested the father suffered persecution before he died. It does not affect the view that on the evidence members of the appellant's close family, although known to be monarchist sympathisers, are not now persecuted or harassed. The Special Adjudicator was entitled to reject the brother's letter. It does not seem to me that the fact the applicant had said the members of his family were not active (see paragraph 8.5) affects the position.
The background evidence
55. Mr. Taghavi submits that the determination reveals that the Special Adjudicator had not taken account of or engaged with the background evidence. My attention was drawn to R V Immigration Appeal Tribunal, ex parte Ahmed [1999] INLR 473 and Horvath v Secretary of State of State for the Home Department [1999] INLR 7.
56. Again, I can take this shortly. Although the Special Adjudicator did not set out every document submitted to him, there is every reason to think he considered the background evidence with care, insofar as it affected the issues in the case. At paragraph 8.1 he referred to what he had. In paragraph 9.7, he referred to what he had in the context of the submissions being made. It is clear that the background was essentially general. He referred to it in addition: paragraphs 9.5 and 9.9.
57. Each case must be considered on its facts. Here, the determination suggests that the Special Adjudicator considered the background carefully and put it into the context of the applicant's claim. It was not necessary to set out each document he considered and his findings regarding it. I shall deal with the Amnesty International Report separately.
Membership of Arasch
58. In paragraph 11.6, the Special Adjudicator deals with the letter from Arasch (see paragraph 30 above). He plainly doubted its authenticity by reference to its contents. In particular, he had difficulty reconciling the comment that it had taken a long while to trace the applicant, when the letter was dated 5 August 1994 and the applicant had only arrived in the United Kingdom two days before.
59. Mr. Taghavi submits that such a finding should not have been made. It was incumbent on the Secretary of State to prove it was a forgery, if that is what he was saying. He drew my attention to those authorities which support the proposition that when the Secretary of State is suggesting a document is a forgery, he has to prove it.
60. In Regina v Secretary of State for the Home Department ex parte Obosi, FC3 1999/8180/C, Lord Justice Buxton, when a similar complaint to Mr. Taghavi's was being made, said that the adjudicator in that case "was clearly entitled to look at this warrant in the whole circumstances and put it against the background of the applicant's evidence as to how it came to be issued and the circumstances it demonstrated." Here the Special Adjudicator had the document. He was entitled to consider its contents and reach conclusions about it. Moreover, in the final analysis, he is saying no more than this: the letter does not state he is a member of Arasch. There is no documentary evidence that he is.
Activity in the United Kingdom
61. Mr. Taghavi submits, so far as is relevant to this application, that the Special Adjudicator had to determine whether the post arrival activity in the United Kingdom was reasonably likely to come to the attention of the Iranian authorities. I agree.
62. Mr. Taghavi also submits that the fact the activity in the United Kingdom may have been carried out in bad faith has to be ignored (see Danian v Secretary of State for the Home Department [1999] INLR 533). Again, I agree. At the time of this determination the law was thought to be that activity in bad faith was fatal to application for asylum. If therefore, in this case, the Special Adjudicator made such a finding which was material to the outcome of the case, that would be fatal to his determination.
63. I hope I correctly follow Mr. Taghavi's submissions thereafter. I will try and summarise them.
64. First, he attacks the Special Adjudicator's findings regarding the photographs. He makes no finding as to whether the photographs have come to the Iranian authorities' attention. His comment (in paragraph 11.11) that the photographs "appear to have been taken to show the appellant has attended such demonstrations for the purpose of this appeal" show he was applying the "bad faith" test.
65. Second, the Special Adjudicator was wrong to conclude that the activities of IRR-B are likely to be less objectionable that those of CMI-FL (paragraph 11.13).
66. Third, the Special Adjudicator misinterpreted the Amnesty International Letter. That leads him into error regarding the Iranian authorities' likely views regarding the persecution of members of CMI-FL (paragraph 11.13).
67. Fourth, he attacks the Special Adjudicator's finding that if the applicant were an active supporter of CMI-FL, it would not be reasonably likely he would suffer persecution, having regard to the background documentary evidence and the position of the applicant's family (paragraph 11.14).
68. Fifth, he submits there should have been a specific finding as to whether the activity in the United Kingdom would make it reasonably likely the applicant would be persecuted on his return. There should, in particular have been a specific finding about the photographs.
69. It seems to me that it is necessary to read what the Special Adjudicator has said regarding these matters as a whole. It is this. There is no evidence a monarchist sympathiser will be persecuted (paragraph 11.9). He doubts that the applicant has been politically active as suggested. He appeared to lack knowledge of recent Iranian history and of the purpose of the demonstrations (paragraph 11.10). The photographs were likely to have been taken not for publicity, but for the appeal. The membership card in respect of the body which organised the demonstration was a photocopy and undated. It could not be inferred from it the applicant was a member of the organisation (paragraph 11.12).
70. In short, on the evidence, the Special Adjudicator rejects the account of activity in the United Kingdom as claimed. He did not accept that the applicant was an active member of CI-FL. That has nothing to do with good faith in the Danian sense. Having heard the evidence, he was in my view entitled to do that. In such circumstances, he is saying, it would not be reasonably likely he would be persecuted for his activity in the United Kingdom.
71. As for his comments about IRR-B, he made them having sought evidence from Mr. Bahar. He was entitled to conclude it would be a less objectionable organisation than CMI-FL. The Amnesty International letter said that the researcher knew of no specific instances of persecution of CMI-FL members, albeit that activity would attract the same interest as activity by other opposition parties.
72. The Amnesty International letter also said there were no verified reports of interrogation after prolonged absence abroad. It did too mention the risk that a returnee will be regarded with suspicion.
73. Although criticism can be made of the way the letter was summarised by the Special Adjudicator, looked at in the round, he dealt with it adequately in my view.
74. Mr. Taghavi complains about the comments in paragraph 11.14. He suggests the background material should have been specified. Perhaps, ideally, it should. However, the context of the comment was the earlier finding that rejected the applicant's case on its facts. In the circumstances, a short summary such as was made is not fatal to the determination.
75. My view on the United Kingdom aspect comes to this. Once the Special Adjudicator essentially rejected the applicant's account regarding his activity in the United Kingdom, the application was doomed. The account was rejected. The Special Adjudicator was entitled to reject it. Although he could have set out his reasoning in greater detail, what he is saying is sufficiently clear and sustainable.
Conclusion
76. In the circumstances the application cannot succeed. It is rejected.
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MR. JUSTICE GOLDRING: Yes, Mr. Walsh?
MR. WALSH: May it please your Lordship, I appear for the applicant and Miss Giovannetti appears for the respondent, neither of us having appeared before my Lord in the ----
MR. JUSTICE GOLDRING: I am conscious of that. May I just mention one thing? So far as paragraph 60 is concerned, and I am conscious, Miss Giovannetti, that you do not have a copy of this draft judgment, so it is difficult -- perhaps I should hand you my draft. There is a slight problem because my clerk, who has been dealing with this, has not been able to come today and that is one of the difficulties.
MISS GIOVANNETTI: We thought it had probably gone to the Chambers of counsel appearing before my Lord.
MR. JUSTICE GOLDRING: I should have thought it would have done. Let me hand you the document which I know Mr. Walsh has so you both have the same document. I have taken the front page off.
Can I just mention one matter? I have amended paragraph 60, which is at page 20. I have included a reference to a case with which Miss Giovannetti will be familiar called ex parte Odosi, and so I have re-written paragraph 60. So when the final judgment comes, Mr. Walsh, you will find that the words at paragraph 60 that start "I agree" no longer appear, and it then reads: "In R. v. Secretary of State for the Home Department ex part Odosi" and the reference, and then: "Lord Justice Buxton, when a similar complaint to Mr. Taghavi's was being made, said that the adjudicator in that case...", and I then quote from that decision. I add:
"Here the Special Adjudicator had the document. He was entitled to consider its contents and reach conclusions about it. Moreover, in the final analysis he is saying no more than this, that the letter does not state that he is a member of Arasch and there is no documentary evidence that he is."
That is just so you know clearly that that is the amendment.
Now are there any other editorial corrections? If there are, I would welcome your help in indicating them, please.
MR. WALSH: My Lord, at paragraph 139, the "Special Commissioner" should be the "Special Adjudicator".
MR. JUSTICE GOLDRING: Yes. Thank you. That is clearly right.
MR. WALSH: There is no other editorial matter that I have located.
MR. JUSTICE GOLDRING: Thank you, Mr. Walsh. Yes?
MR. WALSH: My Lord, I have two applications. Of course again, not having appeared before your Lordship, I have taken instructions and I do seek permission to appeal, firstly on the very matter to which your Lordship has just referred in paragraph 60, about how to deal with documents and when the Secretary of State -- or when it is concluded that the lack of veracity ----
MR. JUSTICE GOLDRING: Yes, I follow the point.
MR. WALSH: It is a matter which is exercising the mind of courts at the moment, and I have not read ex parte Obesi but ----
MR. JUSTICE GOLDRING: I think perhaps it ought to be read.
MR. WALSH: Well, my Lord sees the point.
The second point is a question of background material, again a vexed question of how it should be considered, and perhaps it is a matter which their Lordships of the Court of Appeal could visit or revisit.
MR. JUSTICE GOLDRING: If they are going to, someone will have to ask one of them.
MR. WALSH: My Lord, I am obliged.
The applicant is assisted by the Legal Aid Service Commission and I seek a detailed assessment of costs.
MR. JUSTICE GOLDRING: Certainly.
MR. WALSH: I have no other application.
MISS GIOVANNETTI: We have no applications, my Lord.
MR. JUSTICE GOLDRING: Thank you both very much. So you appreciate that your copy is, as it were, the draft. By all means retain it, but there will be an amended version.
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