QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BAHRAMI||(CLAIMANT)|
|THE IMMIGRATION APPEAL TRIBUNAL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR ADAMSON (instructed by TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
Crown Copyright ©
"Having considered the evidence as a whole, I do not find the Appellant to be a credible witness. The Appellant claimed his father edited and published anti-state journals between 1985 and 1990 and that in 1990 his father and uncle were arrested and released on bail after a search of their house. The Appellant claimed his father's home was frequently raided by the authorities between 1990 and 1998. However, the Appellant did not seek to leave Iran because of these alleged problems and in November 1998 he was called up into the military. If the Appellant's family had been as politically active as he claimed and under such constant surveillance, I do not find it plausible that the authorities would have been unaware of this when he was called up into the military. At interview, the Appellant said he was arrested, interrogated and detained for two months because his criticism of certain army activities was viewed as political interference. I take the view that, although this punishment may appear to be harsh, it would be within the bounds of military discipline. After being detained two months, the Appellant was released and posted to another prison to continue his military service. This adds corroboration to my view that the Appellant was subjected to military discipline. The fact the Appellant was released from detention in order to continue with his military service leads me to conclude that he was of no continuing interest to the authorities.
"By his own admission, the Appellant is a deserter from the army. This is an offence under military service which will be punishable per se in any country. The Appellant had already served a sentence for disobeying orders; if he were to return, doubtless the punishment would be severe, but not disproportionate to the offence.
"After escaping from prison, the Appellant fled to his grandfather's house in the same city. I accept the Secretary of State's view that, had he been of any interest to the authorities, they would have looked for him after his escape and the houses of his close relatives would have been searched. I accept the Secretary of State's view that it is not credible he would have been able to remain at his grandfather's house for a whole month before leaving if the authorities had had any interest in him."
The adjudicator then dismissed the asylum appeal, before adding:
"I now consider the Appellant's appeal under the ECHR. For the reasons above, the Appellant has failed to persuade me, to the appropriate lower standard, that there would be a breach of Article 3 if he were to be returned to Iran. He may face punishment from the military for desertion, but he has failed to persuade me of a reasonable likelihood that this would amount to inhuman/degrading treatment within Article 3. With regard to Article 8, for the reasons stated above, he has failed to persuade me, to the appropriate lower standard, that there would be any breach of his physical and moral integrity if he were to be returned ... the appeal under the Human Rights Act is therefore dismissed."
"I was sworn at and beaten so severely that they broke my nose."
"Ground 4(a) asserts that the Adjudicator had failed to consider what punishment the Applicant would face. The Adjudicator had in fact described earlier punishment for disobeying orders (detention for two months) as harsh, but within the bounds of military discipline. The Applicant had failed to persuade her that any future punishment for desertion would breach his Article 3 rights. That places the burden of proof where it properly lies ... Ground (d) asserts that the Adjudicator failed to consider the extent to which conditions in prison, if the Appellant were detained, would violate his rights under Article 3. I repeat my earlier comments in respect of that ground.
"I am not persuaded that an appeal to the Tribunal would have a real prospect of success or that there is any other compelling reason why an appeal should be heard."
"Permission be granted on the issue of whether the Adjudicator and the Immigration Appeal Tribunal in holding that the likely punishment for desertion will not be disproportionate for the offence and not inhuman and degrading has sufficiently and properly taken into account general prison conditions in Iran."
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
It is common ground that either by reference to its duration or the conditions in which it is served, a period of imprisonment may involve a breach of Article 3. It is also well known that the threshold for such a breach is quite a high one.
"In my judgment, Adjudicators should indicate with some clarity in their decisions:
"1) what evidence they accept;
"2) what evidence they reject;
"3) whether there is any evidence as to which they cannot make up their mind, whether or not they accept it;
"4) what, if any, evidence they regard as irrelevant."
"If the judgment does not make it clear why the Judge has reached his decision, it may well be impossible within the summary procedure of an application for permission to appeal to form any view as to whether the Judge was right or wrong. In that event permission to appeal may be given simply because justice requires that the decision be subjected to the full scrutiny of an appeal.
"It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."
Whilst that judgment was written in the context of reasoned judgments in civil cases generally, Mr Adamson, on behalf of the Secretary of State, does not dispute its relevance in the present context.
"... numerous credible reports that security forces and prison personnel continued to torture detainees and prisoners. Some prison facilities ... are notorious for the cruel and prolonged acts of torture inflicted upon political opponents of the Government. Common methods include suspension for long periods in contorted positions, burning with cigarettes, sleep deprivation, and most frequently, severe and repeated beatings with cables or other instruments on the back and on the soles of the feet. Prisoners have also reported beatings about the ears, inducing partial or complete deafness, and punching in the eyes, leading to partial or complete blindness ...
"Prison conditions are harsh. Some prisoners are held in solitary confinement or denied adequate food or medical care in order to force confessions."
The current CIPU report contained this passage:
"Procedures governing arrest, detention and trial are rarely made public. Reports of systematic human rights abuses include extrajudicial killings and summary executions; disappearances; widespread use of torture and other degrading treatment; harsh prison conditions; arbitrary arrest and detention; lack of due process; unfair trials; infringement on citizens' privacy; and restrictions on freedom of speech, assembly, association, religion and movement."
"Prison conditions were notoriously harsh and could be life-threatening. Brutality and torture were common. Given his motives for disobeying orders, the court was urged to find that this was not legitimate prosecution."
"the further sentence for desertion would be unduly harsh."