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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nazir (AP) v Secretary Of State For The Home Department For Judicial Review [2001] ScotCS 238 (19 October 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/238.html
Cite as: [2001] ScotCS 238, 2002 SCLR 411
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OUTER HOUSE, COURT OF SESSION

P753/00

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD MACFADYEN

in Petition of

SHAZADA TAHIR NAZIR, (AP)

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

for

Judicial Review

________________

 

 

Petitioner: D. O'Carroll; Lindsays, W.S. (for Gray & Co, Glasgow)

Respondent: Ms Carmichael; H.F. Macdiarmid

 

19 October 2001

Introduction

[1] In this process the petitioner challenges the validity of a decision made by the respondent on 19 April 2000 refusing to treat representations made on the petitioner's behalf on 23 December 1999 and 22 March 2000 as a fresh application for asylum. The remedy sought is reduction of the decision.

Previous History

[2] The petitioner is a citizen of Pakistan. He was born there on 10 July 1967. He arrived in the United Kingdom on 30 July 1991. He made a claim for asylum on 3 November 1995. The respondent refused that claim on 20 January 1998. On 26 January 1998 a notice of removal was served on the petitioner. He appealed against that notice to a Special Adjudicator. A hearing in respect of the appeal took place on 13 March 1998. The appeal was refused by determination dated 3 April and promulgated on 7 April 1998 (No. 7/1 of process).

[3] In brief, the basis of the case for asylum presented on the petitioner's behalf before the Special Adjudicator was that he was, prior to his departure from Pakistan, a member of the Pakistan Muslim League (PML), a political party active there. At that time it was in opposition. The petitioner claimed that he was active in the party, that he was treasurer of the local branch and that his father was also an office holder in the branch. He further claimed that the government party, the Pakistan Peoples Party (PPP) had falsely accused him of kidnap and murder, and that the police, acting in collusion with the PPP, had arrested his father and brother in his stead when he could not be found. He claimed that they had obtained a court order to allow them to shoot him on sight.

[4] The Special Adjudicator accepted the petitioner's case in part. He recorded in particular that:

"... the appellant has claimed that he and his father were active members of the PML. He claimed that they both held office within the local branch.

The appellant's account of his involvement with PML is reasonably coherent and specific. I am prepared to accept that his account of his involvement is credible."

[5] However, the Special Adjudicator rejected the petitioner's claim for asylum. He explained his reasons in inter alia the following terms:

"However, I do not accept as credible, because of the inconsistencies, discrepancies and delay referred to above, that the appellant has had false charges brought against him in Pakistan as a result of which he felt obliged to leave the country.

The respondent points out ... that the PML(N) is currently the party of government in Pakistan following the general election of February 1997. In such circumstances the respondent was not satisfied that membership of the PML would constitute grounds for claiming asylum. Having regard to the documentary evidence before me as to the situation in Pakistan ... I am satisfied that the respondent's contention on this point is well founded."

After dealing with two further related points, and taking the view that they did not support the petitioner's case, the Special Adjudicator concluded:

"The appellant has failed to satisfy me that he has a well founded fear of persecution for a Convention reason were he to return to Pakistan. Accordingly his appeal will not succeed."

[6] The petitioner brought proceedings for judicial review in respect of the refusal of his appeal, but before those proceedings reached a substantive hearing, certain changes of circumstance had taken place, which resulted in the making of further representations on his behalf.

The Further Representations

[7] In October 1999 there was a military coup in Pakistan, in which the military took over control of government, and the PML once more became an opposition party. In light of that event, further representations in support of the petitioner's claim for asylum were made on his behalf to the respondent. Those representations took the form of letters from his solicitors dated 23 December 1999 and 22 March 2000 (Nos. 6/1 and 6/2 of process). Under cover of the second of those letters there were submitted to the respondent (a) a letter from the petitioner's father and (b) a letter (or "certificate") written by a member of the provincial assembly. The case made on the petitioner's behalf may be summarised as follows:

  1. he was a senior member of the PML in his local area,
  2. at the time of his earlier application for asylum the PML were in power, and the Special Adjudicator had accepted that he was not in danger,
  3. following the coup the military regime had initiated action against leading members of the PML, and
  4. as a result the petitioner now had a well founded fear that he would be persecuted if he were to return to Pakistan.

[8] The letter from the petitioner's father (No. 6/3 of process) was in the following terms:

"My dear son Shehzada Tahir Nazir,

May you live long and God Almighty be with you.

I feel sorry to inform you that present Government is making Muslim League Workers scape goats for nothing. They have re-opened false cases registered against you during PPP Government in 1990 and Police often raids our home. I have also taken refuge in house of your uncle with few family members.

However we are hopeful that at last this period will be over and we shall again restore our worth. In the meantime, I suggest you not come to Pakistan so long the present Government is over.

Although we all miss you very much but it is necessary for your life and safety.

Your loving father.

(Sheikh Nazir Ahmed)".

The other letter (No. 6/4 of process) was in the following terms:

"CERTIFICATE

This is to certify that Mr Shehzada Tahir Nazir S/o Sh. Nazir Ahmed R/o Bazar Thanewala, Gali Maulvi Siraj Din, Gujranwala is an active member of Pakistan Muslim League (N) Group. Shehzada Tahir Nazir's father Sh. Nazir Ahmed has been Councilor of PML (N) and is a prominent figure of the city.

Under the Prevailing circumstances it is better for Mr Shahzada Tahir Nazir to remain out of country.

S. A. Hameed,

M[ember] P[rovincial] A[ssembly],

Vice President,

Pakistan Muslim League,

Punjab, Pakistan."

Both letters were said to have been received by the petitioner in an envelope (also forming part of No. 6/4 of process), which bears a postmark "Gujranwala, 11 Mar. 00".

The Decision Letter

[9] The decision which the petitioner seeks to bring under review was contained in a letter dated 19 April 2000 (No. 6/6 of process) and began in the following terms:

"In your letters dated 23 December 1999 and 22 March 2000 you asked the Secretary of State to consider your representations on behalf of Mr Nazir as a fresh application for asylum.

Paragraph 346 of the Immigration Rules (HC 395, as amended by Cm 3365) states that the Secretary of State will treat representations as a fresh application if the claim advanced in the representations is sufficiently different from the earlier claim and that (sic) there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied: paragraph 334 specifies the conditions under which asylum will be granted.

In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which is not significant; or is not credible; or was available to the applicant at the time when the previous application was refused or when any appeal was determined.

When considering applications in accordance with this paragraph, the Secretary of State's approach is therefore to compare the later claim with the earlier claim and to form a view as to whether it is sufficiently different from the earlier claim that a special adjudicator might reasonably take a favourable view of the later claim, despite rejection of the earlier one.

The Secretary of State has carefully considered your letters of 23 December 1999 and 22 March 2000 and the accompanying documentary evidence. You stated that your client was allegedly a senior member of the Pakistan Muslim League (PML) in his local area and following the recent coup, fears persecution from the new regime."

[10] With that preamble, the letter proceeded to consider the representations which had been made:

"The Secretary of State is aware of the suspension of democracy in Pakistan and the installation of military rule following the coup of 12th October 1999. The situation however in Pakistan remains calm with no major incidents of violence or descent into a state of lawlessness. Civil courts continue to function, autonomous from the military. The police have retained the power of arrest. Technically and legally therefore, martial law has not been imposed in Pakistan. Freedom of the press has been encouraged by the new regime, and despite the abeyance of the democratic process, there has been no apparent infringement of other civil liberties. Members of the PML are therefore (sic) unable to canvass support to be elected to either the National [or] Provincial legislatures.

Despite these developments however, the Secretary of State does not consider that membership of the PML, in itself, constitutes ground for granting refugee status under the terms of the 1951 United Nations' Convention or its 1967 Protocol. Political activity has not been banned by the National Security Council, which was set up by the military following the coup. Political parties are still free to meet and actively demonstrate their views. Criticism has been openly voiced towards the military intervention by some sections of Pakistani society without any subsequent repercussions. The Secretary of State therefore finds no reason to believe that your client's alleged membership of the PML would result in him facing persecution by the authorities, should he return to Pakistan. He is also aware that the party leader, Nawaz Sharif has been arrested by the authorities, but he does not consider that this would cause your client to be at risk should he return to Pakistan. He has accordingly disregarded this material in reaching his decision.

The Secretary of State has considered the documents provided in support of your client's claim. His general experience, as a result of considering very many applications for asylum is that many of the letters and documents submitted to him in support of those applications are of limited reliability. For example, the Secretary of State is aware of instances where persons applying for asylum in the United Kingdom have commissioned relatives in Pakistan to obtain letters or documents. In your client's case the letters provided are written in English, a non native language and appear to have been written for the benefit for (sic) this Directorate. This is especially true with regard to the personal letter your client received from his father. The Secretary of State would expect such a letter to have been written in your client's native tongue. He therefore considers that, without other independent corroborating evidence, they are not significant, making no difference to the likelihood of your client's claim succeeding. He has accordingly disregarded this material in reaching his decision.

In the light of the above points the Secretary of State has concluded that there is not a realistic prospect that the conditions set out in paragraph 334 will be satisfied.

Accordingly, the Secretary of State has decided not to treat your representations as a fresh application for asylum."

[11] The issue before the Secretary of State for determination having thus apparently been exhausted, the letter then concludes in terms that appear to me to be difficult to reconcile with the view that there was no fresh application to consider:

"The Secretary of State has reconsidered the asylum claim on all the evidence available to him, including the further representations, but is not prepared to reverse his decision of 20 January 1998 upheld by the independent special adjudicator on 13 March 1998."

The Relevant Law

[12] The respondent's decision bears to be based on paragraph 346 of the Immigration Rules. That rule is in the following terms:

"Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which;
    1. is not significant; or
    2. is not credible; or
    3. was available to the applicant at the time when the previous application was refused or when any appeal was determined."

[13] In Secretary of State for the Home Department v Coskun Boybeyi [1997] Imm AR 491 Nourse LJ at 493 quoted four propositions which had been formulated by Sedley J at first instance as summarising the applicant's case and which were accepted by the respondent:

 

"1. The fundamental obligation, explained by Sir Thomas Bingham MR in ex parte Onibiyo [[1996] Q.C. 768], is to give proper consideration to every potentially genuine asylum claim, even where the applicant has previously made such a claim without success.
 

2. Rule 346 excludes mere repeat applications.
 

3. But where there is evidence of a relevant and substantial change of circumstances (Rule 346), or even where new evidence is advanced which could not reasonably have been advanced earlier (ex parte Onibiyo), an obligation arises to entertain the newly made claim whatever the grounds for rejection of the previous one, unless the new evidence
   

(a)

is not intrinsically credible ... or
   

(b)

is not capable, even if accepted, of producing a different outcome (Rule 346).
 

4. These being the policy and objects of the legislation and rules, the Secretary of State cannot reasonably refuse to entertain an application for asylum to which none of the foregoing exceptions apply. Essentially the question is whether there is a real issue to be determined."

After noting that in a later case Sedley J reformulated paragraph 3(a) by omitting the word "intrinsically", Nourse LJ continued (at 494-495):

"The judge then came to the real difficulty in the case, which is occasioned by the Secretary of State's role as the judge of two questions: first, whether the new claim is indeed a fresh claim for asylum; second, if so, whether it ought to be acceded to or rejected. ... [He] continued:

'[Counsel] accepts, as he must, that there is in law a point at which the Secretary of State is bound to entertain an application as a fresh claim. He submits that it comes "where the new evidence is on its face conclusive and is unchallenged". This, with respect, cannot be right. It would mean that to have a fresh claim entertained at all an asylum seeker would already have had to prove the claim in full. It would make the Secretary of State the arbiter of this dual question without recourse to an independent tribunal on contested issues of fact capable of founding a fresh claim for asylum.

If, on the other hand, the process is as the applicant submits it is, the Secretary of State has initially a more limited series of question to determine: Does the claim relate to substantially the same circumstances as before? If so, is there nevertheless fresh evidence in support of it? If there is, is the evidence credible on the face of it and is there any good reason why it was not advanced previously? If these questions are answered favourably to the applicant, the new claim is one which the Secretary of State is required to entertain. It is then, in the applicant's submission, that the Secretary of State will embark upon the kind of inquiry which he has embarked upon here and which led him ultimately, and perfectly tenably, to reject the claim. The difference, however, will be that the rejection is appealable to an independent tribunal, the special adjudicator.

It seems to me that the applicant's paradigm must be the correct one if the United Kingdom's obligation described by the Master of the Rolls in Onibiyo is to be respected.'

Whilst I am in broad agreement with the judge's views as there expressed, I think that his statement of the series of questions which the Secretary of State must initially determine is not in every respect in accordance with 'the acid test' propounded by Sir Thomas Bingham MR in Onibiyo at [783H-784A]. In particular, the requirement that the evidence should be credible 'on the face of it' ought, as in the earlier passage, to be reformulated by omitting those words. What the Master of the Rolls said was this:

'The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim.'

Those observations must be read in the context of everything which the Master of the Rolls said under the sub-heading 'A fresh claim' at [783B-784A], including his acceptance of the proposition that, if a fresh claim depends on new evidence, then it has to satisfy tests, analogous to those in Ladd v Marshall [1954] 1 WLR 1489, of previous unavailability, significance and credibility. It follows that it is implicit in the concept of 'a realistic prospect that a favourable view could be taken of the new claim' that the prospect may be manifested by evidence which satisfied the second and third of the Ladd v Marshall tests, namely that it would probably have an important influence on the result of the case, though it need not be decisive, and that it must be apparently credible, though it need not be incontrovertible. ...

I now return to the judge's judgement, taking it up at the point at which I broke off:

'While therefore the Secretary of State remains in law the single arbiter of whether material submitted to him by a formerly unsuccessful asylum seeker amounts to a fresh claim for asylum, the criteria by which he must answer the question are necessarily a matter of law. In the present case the very need to make careful inquiries into the authenticity of the warrant, and the resulting conflict of evidence between the applicant and the Home Office, make the Secretary of State's conclusion that the application did not constitute a fresh claim untenable. It is he, on authority, who is the arbiter of this question, but he cannot answer it in the negative if both the proffered material and his own response, inquiries and conclusions are consistent only with an affirmative answer when gauged by the relevant criteria.'

Again I am in broad agreement with that passage. The critical sentence is the second, in which it is made clear that the judge was applying a Wednesbury test. I agree with him that the Secretary of State's conclusion that the application did not constitute a fresh claim for asylum is untenable."

[14] A number of other cases were cited to me in the course of argument, but it seems to me that the somewhat lengthy quotation from the judgment of Nourse LJ in Boybeyi which I have set out in paragraph [13] above provides a sufficient context for discussion of the submissions made in the present case. I shall refer to the other cases cited, where necessary, in the course of discussing those submissions.

The Petitioner's Submissions

[15] For the petitioner, Mr O'Carroll submitted that the respondent's decision that the representations made on behalf of the petitioner in the letters of 23 December 1999 and 22 March 2000 did not constitute a fresh application for asylum was unreasonable. He submitted that on any reasonable view that material passed the tests formulated in Boybeyi, if those tests were properly understood. He drew a distinction between a fresh application which was based on a material change of circumstances, and one which was based on new evidence bearing on the issues that had been determined in the original application. The representations made on the petitioner's behalf fell into the former category, since they were concerned with whether the petitioner now, after the coup of October 1999, had a well-founded fear of persecution for a Convention reason if he returned to Pakistan. It followed that the passage in Nourse LJ's judgment in Boybeyi at the top of page 495, where reference was made to Ladd v Marshall, was of no application, because it was concerned with cases in which fresh evidence on the same issue as had previously been determined was tendered. In any event, he submitted, it was inappropriate to apply in a Scottish case an English test for the admission of fresh evidence - the Scottish rules were different (Court of Session Act 1988, section 32(3 Maxwell, The Practice of the Court of Session 574).

[16] Mr O'Carroll emphasised that it was not contended that the respondent ought to have held that the petitioner was entitled to asylum. Before he reached the stage of addressing that question, the respondent had to decide whether the representations amounted to a fresh claim for asylum. That was a separate question from whether the new representations made out the case for asylum. It was perfectly possible for the respondent to accept that representations amounted to a fresh claim, yet subsequently decide, when that fresh claim had been entertained, that the claim was not well founded. If that was the outcome of the respondent's consideration of the fresh application on its merits, the applicant had a right of appeal to an independent tribunal, the Special Adjudicator. On the other hand, there was no right of appeal against a decision that the representations did not amount to a fresh application. In deciding whether to regard the representations as a fresh application or not, the respondent was thus in effect deciding whether the applicant should have a right of appeal in a process to which he (the respondent) was a party. In such a case it ought to follow that where there was any doubt as to whether there was any substance in the new material on which the applicant sought to rely, the respondent should be slow to hold that there was no fresh application. A Special Adjudicator might take a different view as to the significance of the new material.

[17] A number of points were made in support of the contention that the respondent's decision of 19 April 2000 was unreasonable. First, Mr O'Carroll submitted, the respondent had failed to take proper account of the fact that it had been accepted by the Special Adjudicator that the petitioner was not only an active member of the PML, but also held office in the branch in his local area. Instead of recognising that finding, the respondent (incorrectly) recorded the petitioner's solicitors' statement as being that the petitioner "was allegedly a senior member of the ... PML", and later referred again to his "alleged membership of the PML". Secondly, submissions were made in support of the proposition that it was unreasonable on the part of the respondent to disregard the two letters from Pakistan (Nos. 6/3 and 6/4 of process). In considering them, he had started from a position of bias by taking into account his experience in other cases that such documents were of limited reliability. As a matter of logic, it could not be concluded that, because such documents had been found to be unreliable in other cases, these particular documents relied on by the petitioner were likewise unreliable. How was a person who was already in this country at the time of the coup to ascertain and submit evidence about the likelihood of persecution if he were to return, if any answer to inquiries that he might address to relatives and associates in Pakistan was automatically to be regarded as unreliable on the ground that it had been solicited, and was written for the benefit of the Directorate? An irrelevant consideration had thus been taken into account. The genuineness of the letters was a matter for examination and inquiry at the stage at which the fresh application was entertained. It was unreasonable to form an a priori conclusion on the point at the stage of considering whether the material put forward amounted to a fresh application. Further, the fact that the letters were written in English could not reasonably be regarded as per se an indication that they were unreliable. English was, after all, an official language in Pakistan, or at least was one used for certain official purposes there. Thirdly, Mr O'Carroll submitted, the respondent's decision was also unreasonable in disregarding the letters as not being significant on account of the absence of other independent corroborating evidence. Corroboration was not required as a matter of law in asylum cases. Material was significant if it was relevant to the establishment of the petitioner's case for asylum.

The Respondent's Submissions

[18] For the respondent, Miss Carmichael submitted that the proper starting point was rule 346 of the Immigration Rules, which were made by the respondent and laid before Parliament in accordance with section 3(2) of the Immigration Act 1971. The tests of credibility and significance were part of the rule. That was justified by what was said by the Master of the Rolls in Onibiyo, where the application of those tests was said to arise if a fresh claim depended on new evidence. Neither that dictum nor the rule confined the application of those tests to cases where the applicant sought to adduce new evidence of facts which existed at the time of the original application. Miss Carmichael also referred to Nkereuwen v Secretary of State for the Home Department [1999] Imm AR 267, in which the proposition that the question of the credibility of new material arose only at the stage of consideration of the fresh claim was rejected (see per Stuart-Smith LJ at 270). The respondent's decision on credibility at the stage of deciding whether or not the new representations amounted to a fresh claim for asylum was only subject to review on Wednesbury grounds (Cakabay v Secretary of State for the Home Department (No. 2) [1999] Imm AR 176 per Peter Gibson LJ at 194).

[19] Dealing with Mr O'Carroll's specific criticisms of the decision letter (see paragraph [17] above), Miss Carmichael submitted first that the references to the petitioner's "alleged" membership of the PML did not disclose that the respondent had ignored the Special Adjudicator's finding that the petitioner was a member of and branch office-holder in the PML. Notwithstanding the use of the word "alleged", it was clear that the decision-maker's consideration of the new representations proceeded on the hypothesis that the petitioner was indeed a member of the PML in the capacity which he claimed. It was evident from the fifth paragraph of the decision letter that the decision-maker clearly understood that the petitioner's case was that he was a senior member of the PML. The substance of the decision on that aspect of the matter was that because (a) political parties were not banned following the coup, and were free to meet and actively demonstrate their views, albeit not to canvass support, and (b) open criticism of the military intervention had been voiced in some sections of Pakistani society without repercussions, there was no reason to believe that the petitioner's membership of the PML would result in persecution. Moreover, the arrest of Nawaz Sharif, the party leader, was acknowledged, but judged not to mean that the petitioner would be at risk if he returned. These were views which it was open to the respondent to take. The last sentence of the seventh paragraph of the decision letter, which said that the respondent had "disregarded this material" in reaching his decision, did not mean that relevant material had been ignored. The use of the word "disregarded" was to be viewed in light of the terms of Rule 346. The respondent had considered whether there was a reasonable prospect that the new material would result in the conditions set out in paragraph 334 being satisfied. He had concluded that it would not, had therefore concluded that the material was "not significant", and had therefore "disregarded" it. That whole approach was a proper application of Rule 346.

[20] Turning to the decision-maker's treatment of the letters from Pakistan (Nos. 6/3 and 6/4 of process), Miss Carmichael made a number of points:

  1. The decision-maker was entitled to take a view of the significance and credibility of the letters (Nkereuwen).
  2. Although Mr O'Carroll had characterised the letters as dealing wholly with new circumstances, that was not so. The petitioner's father's letter dealt in part with the previously rejected allegation that the petitioner had, prior to his original application for asylum, been the subject of false allegations of criminal activity.
  3. So far as the matter of language, it was not unreasonable of the decision-maker to expect a personal letter between father and son to be in their first language.
  4. It was not strictly correct to say, as Mr O'Carroll had done, that English was an official language in Pakistan. The official language is Urdu, the commonest language is Punjabi, and English is used as a lingua franca by the Pakistani elite and in government ministries.
  5. The decision-maker was entitled to take into account, as a factor affecting the credibility of the letters, that they appeared to have been solicited for the purpose of being presented in support of a claim for asylum.
  6. It was not correct that the respondent was not entitled to rely, in judging the credibility of material submitted in support of an application, on his own experience in such cases.
  7. The decision-maker's approach to the letters was only open to challenge if it was Wednesbury unreasonable. It was not.

[21] In response to the petitioner's submission about corroboration, it was accepted that there was no requirement of corroboration as a matter of sufficiency of the evidence in support of the claim for asylum. It did not follow, however, that the decision-maker, having found reason to doubt the credibility or reliability of evidence, was not entitled to decline to accept it except where supported by other evidence.

Discussion

[22] In order to consider whether the decision expressed in the decision letter, No. 6/6 of process, is open to challenge in this process, it is necessary to understand the nature of the jurisdiction which the respondent was exercising in taking that decision. The respondent has a jurisdiction to make an initial determination on a claim for asylum. Any such determination may be subjected to review by appeal to an independent tribunal, the Special Adjudicator. It is recognised that circumstances may arise in which the respondent comes under a duty to consider afresh whether an applicant is entitled to asylum. If a fresh decision is made on a second or subsequent application, that decision too may be subjected to review by appeal to the independent tribunal, the Special Adjudicator. However, the respondent is not obliged to treat as a fresh application for asylum every new representation made on behalf of an asylum seeker after refusal of the original application. There is a preliminary stage at which the respondent must decide whether fresh representations amount to a fresh application for asylum. From a decision on that question, no appeal is available to the Special Adjudicator. It follows that such a decision is susceptible to judicial review.

[23] As Nourse LJ recognised in Boybeyi at 494, the respondent is thus the judge of two separate questions, namely (1) whether the new representations amount to a fresh claim for asylum, and (2) if so, whether the new claim for asylum is well founded. Because a decision on the latter question is subject to appeal to the Special Adjudicator, while a decision on the former is not, it is, in my opinion, essential that the respondent should treat those separate questions separately. It is in my view necessary for him to keep clearly in mind when deciding whether representations amount to a fresh application that he is not at that stage deciding whether there is a well-founded claim for asylum.

[24] The respondent has set out in paragraph 346 of the Immigration Rules the practice to be followed in deciding whether fresh representations amount to a fresh application. The primary test formulated in the Rules is that representations will be treated as a fresh application "if the claim advanced ... is sufficiently different from the earlier claim that there is a realistic prospect that the conditions [for upholding an asylum claim] will be satisfied". That is a reflection of the fundamental obligation, explained by Sir Thomas Bingham MR in Onibiyo and mentioned in the first of Sedley J's propositions quoted with approval by Nourse LJ in Boybeyi at 493, "to give proper consideration to every potentially genuine asylum claim, even where the applicant has previously made such a claim without success" (emphasis added). As the matter was formulated by the Master of the Rolls in Onibiyo,

"The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonable have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim" (emphasis added)

Those dicta support the view that the respondent must hold that the representations amount to a fresh application, and thereafter, as a separate process, proceed to the second stage of considering the fresh application on its merits whenever the fresh claim is potentially genuine, and there is a reasonable prospect that it could succeed. Whether it actually is genuine, and does succeed, must await determination in the second (appealable) process.

[25] As Sedley J recognised in Boybeyi (in the third proposition quoted by Nourse LJ at 493), an obligation to entertain a new claim might arise either (1) because there was evidence of a relevant and substantial change of circumstances, or (2) because there was new evidence which could not reasonably have been advanced earlier. In my respectful opinion, the distinction between those two categories has not always been kept firmly in mind when the proper approach to the question of whether fresh representations amount to a fresh application has been considered. The expression "new evidence" is capable of applying to both categories, and is to that extent ambiguous and potentially misleading. The first category covers cases where there has been a material change in circumstances. The "new evidence" in such cases is evidence about events which had not happened at the time of the original application. The second category covers cases where there has been no change of circumstances, but evidence has been uncovered which bears on the matters considered in the original application, but was not available when that application was originally considered and determined. In such cases, the "new evidence" is additional evidence about events which had occurred before the original application was determined. It seems to me that different considerations may apply in those two categories of case when considering whether fresh representations amount to a fresh application for asylum.

[26] In maintaining that distinction it is, in my view, helpful to bear in mind part of the passage quoted by Nourse LJ at 494 from the judgment of Sedley J in Boybeyi:

"If ... the process is as the applicant submits it is, the Secretary of State has initially a more limited series of questions to determine: Does the claim relate to substantially the same circumstances as before? If so, is there nevertheless fresh evidence in support of it? If there is, is the evidence credible on the face of it and is there any good reason why it was not advanced previously?"

Sedley J went on to endorse that approach. It seems to me that if that approach is followed, and the first question ("Does the claim relate to substantially the same circumstances as before?) is answered in the negative, the result is that the claim falls to be treated as a fresh one which will require then to be considered, in a separate decision making process, on its merits. The subsequent question about whether the fresh evidence is credible appears to me to arise only in the other category of case where there has been no change of circumstance and what is adduced is fresh evidence in support of the same factual assertions as underlay the original claim. That analysis appears to me to be capable of being reconciled also with the passage in the judgment of Sir Thomas Bingham MR in Onibiyo, where he said (at 783C):

"If the fresh claim depended on new evidence, then it had to satisfy tests ... of previous unavailability, significance and credibility" (emphasis added).

That passage seems to me to be concerned with the case of new evidence bearing on facts already considered in the first application, and not with evidence dealing with a change of circumstances since the original determination.

[27] If that analysis is correct, the scope of the last sentence of paragraph 346 of the Immigration Rules, dealing with the disregarding of material which is not significant or not credible, ought to be regarded as applying only to cases where there is no change of circumstances relied upon. If the representations put forward a relevant and substantial change of circumstance that should be sufficient to lead to the conclusion that they amount to a fresh application. In such a case, the respondent would misdirect himself if he attempted to assess the credibility and significance of the evidence dealing with the change of circumstances, or supporting the new contentions put forward in light of the changed circumstances.

[28] If that approach falls to be applied in the present case, the result would in my view be that the respondent would be seen to have misdirected himself in embarking on an assessment of the significance of the evidence about the change of circumstances, i.e. about the effect of the coup and the conditions in Pakistan following its occurrence as affording ground for a well founded fear on the petitioner's part that if he returned to Pakistan he would suffer persecution, and in then "disregarding" it, presumably (although the decision letter does not say so) on the basis that it is not "significant". In doing so the respondent in my view can be seen to have passed from the stage of deciding whether the new representations were a fresh application, to the stage of deciding in substance whether the new material supported the case for asylum. The practical significance of that error is that by confusing the two decision-making processes, and deciding the question whether there was a new application on grounds which truly went to the merits of the new application, he deprived the petitioner of the opportunity of having the decision on the significance and credibility of the evidence reviewed by a Special Adjudicator.

[29] Similarly, if the approach which I have outlined is correct, the respondent can be seen to have misdirected himself in his treatment of the letters from Pakistan. Although there is some force in Miss Carmichael's submission that the petitioner's father's letter harks back in part to the former assertion of persecution when the PPP was in power (and would to that extent fall to be evaluated in the manner appropriate to new evidence bearing on an issue previously determined, including the application of the significance and credibility tests), the petitioner's principal purpose in tendering the letters in support of his fresh representations was to provide evidence to support his contention that, in the changed circumstances after the coup, he had a well founded fear of persecution. That is not an issue that had previously been considered by the respondent in dealing with the original application. Accordingly, in my view, the proper approach for the respondent to have adopted in relation to the letters would have been simply to recognise that they were (at least for the most part) evidence put forward in support of a "change of circumstances" case, which was potentially genuine and could succeed after inquiry, depending on the view taken at the subsequent stage of the fresh application and the evidence relied upon in support of it. Instead, the respondent entered upon an assessment of the reliability and weight of the letters as evidence, and reached the conclusion that, on their own, they were not "significant" and therefore fell to be "disregarded". For the reasons which I have already set out, I am of opinion that that amounted to a misdirection on the part of the respondent, in that he failed to maintain the substance of the distinction between his preliminary decision on whether there was a fresh application and the subsequent determination of the fresh application on its merits. His treatment of the letters was in substance an evaluation of them as evidence on the merits of an asylum claim.

[30] In the views which I have expressed so far I have not relied on any of the detailed criticisms of the decision letter advanced in argument on the petitioner's behalf. It is convenient to deal with those points at this stage. So far as the decision- maker's use of the word "alleged" in connection with the petitioner's membership of the PML is concerned, it does not seem to me to bear the significance that Mr O'Carroll sought to place upon it. It is far from clear to me why the word was used at all, but Miss Carmichael was, in my view, correct in submitting that it is clear enough that the decision-maker proceeded on the hypothesis that the petitioner was indeed a member of the PML of the seniority that he claimed. So far as the decision-maker's treatment of the letters is concerned, I do not propose to discuss the matter in detail. The defect in the decision-maker's approach, it seems to me, is the one already identified, namely that he entered on a consideration of the evidence on its merits. Had he been properly engaged in that exercise, I would have regarded him as entitled to take into account, as ground for doubt as to the genuineness of the letters, his general experience of such letters, including the points about language and solicitation for the purpose of the asylum claim. Whether those considerations could reasonably result in rejection of the letters as evidence in the circumstances of this case is not a matter on which I propose to express an opinion. Had the matter been under consideration in the context of a decision on the merits of the application, the petitioner would have had the opportunity of appealing to a Special Adjudicator and leading before him evidence about the circumstances in which the letters were written which might have allayed the suspicion that they were not genuine. So far as the corroboration point is concerned, it is of course the case that there is no formal requirement of corroboration in an asylum case. That was accepted by Miss Carmichael. In my view, however, the decision-maker, if he doubted the credibility or reliability of the letters, was entitled to say that he would not rely on them unless there was other evidence on the same point. But the proper place for such a comment, it seems to me, would be the decision on the substantive application, not the decision on the preliminary question of whether the fresh representations fell to be treated as a fresh application.

[31] In what I have said so far, I have proceeded on the view that, in the case of representations which seek to put forward a fresh application on the basis of a material change in circumstances the questions of the "significance" and "credibility" of the new material do not arise (at least in the way in which they have been considered by the decision-maker in the decision letter No. 6/6 of process) at the stage of determining whether the representations amount to a fresh application; and that those considerations only arise in that way if the representations are based on additional evidence bearing on a factual issue already determined in the original application. I recognise, however, that the distinction that I have sought to maintain between the two categories of case identified in paragraph [25] above, is not one which is consistently maintained throughout the authorities, and that there is support for the view that the questions of the significance and credibility of the new material are always for consideration in determining whether the new representations fall to be treated as a fresh application. There is, in my view, a limited sense in which that is so. The limited scope for considering those matters in determining the preliminary question of whether there is truly a fresh application can, in my view, be deduced from an examination of the nature of that preliminary decision.

[32] I accept that when a decision that fresh representations do not amount to a fresh application comes before the court for review, it is subject to review on what have been described in the authorities as Wednesbury grounds (Boybeyi, per Nourse LJ at 495; Cakabay, per Peter Gibson LJ at 194). In other words, for the challenge to the decision to succeed it must be shown that it was one which no reasonable decision-maker, properly directing himself as to the matter before him, could have made. But it is, in my view, necessary to bear in mind that it is the reasonableness of the decision as a whole that is the test. It is not, in my view, appropriate to test individual aspects of the decision by the Wednesbury test, if those aspects involve decisions being made on issues that did not properly form part of what the decision-maker had to decide. It is therefore of no avail for the respondent to argue that the conclusions expressed in the seventh and eighth paragraphs of the decision letter are each reasonable, if those paragraphs deal with matters which ought not to have formed part of the preliminary decision on whether there was a fresh application.

[33] In my opinion the questions of the credibility and reliability of the material put forward in the new representations following a change of circumstances, and the weight to be attached to such material as is acceptable, and whether it therefore does afford ground for granting asylum, are all matters properly forming part of the decision which the respondent has to take on the merits of the fresh application, once he has determined that the material submitted constitutes a fresh application. On the other hand, there may be circumstances in which it is evident on the face of the material submitted that it could not possibly support a favourable decision. The question is how to test whether that is a view open to the respondent at the preliminary stage of deciding whether there is truly a fresh application.

[34] In my view the proper approach can be found foreshadowed in the third of Sedley J's propositions in Boyebi at 493:

"an obligation arises to entertain the newly made claim ... unless the new evidence

    1. is not intrinsically credible, or
    2. is not capable, even if accepted, of producing a different outcome".

I am conscious that, as Nourse LJ records in Boyebi, Sedley J in a later case removed the qualification "intrinsically" from the reference to credibility and that Nourse LJ approved of that modification. In Onibiyo, Sir Thomas Bingham MR referred to evidence which was "apparently credible". It seems to me that in making the preliminary decision on whether there is a fresh claim, the respondent will be entitled to reject there and then evidence which can be seen to be incredible without further examination, or evidence which can similarly be regarded as not significant because it has no real bearing on the question in issue, is irrelevant to that issue, or is incapable of producing a different outcome. Where on the other hand there is an issue to try as to the credibility or significance of the new material, the respondent must hold that there is a fresh application before him, then deal with the issues as to the credibility or significance of the new material when subsequently dealing with the fresh application on its merits. The test for rejection of evidence as incredible or not significant at the preliminary stage is not, in my view, whether a reasonable decision-maker could regard it as incredible or insignificant, since that test would allow the decision-maker to anticipate his decision on the merits, while thereby depriving the applicant of the right of appeal which he would otherwise have. Rather the test, in my opinion, is whether it can be said that no reasonable decision-maker could regard the material as credible and significant. If the material fails that stringent test, it is right that the respondent should not have to go through the pointless process of treating such material as the basis of a fresh application and then entertaining that application on its merits. It does appear, from the fourth paragraph of the decision letter, that the decision-maker did have in mind some such test as I have formulated ("sufficiently different from the earlier claim that a special adjudicator might reasonably take a favourable view of the later claim"). He has not, however, in my view, adhered to that approach. The respondent has not in the present case rejected the material put forward by the petitioner on the ground that no reasonable decision-maker could have regarded it as capable, if accepted, of affecting the outcome of the application. Rather, he has considered it on its merits and rejected it. That might be a decision which a reasonable decision-maker could have made when considering the fresh application on its merits, but it was not in my view the correct approach to the preliminary question of whether the material required to be treated as a fresh application.

Result

[35] For these reasons, I am of opinion that the respondent misdirected himself in holding, for the reasons stated in the decision letter, that the letters of 23 December 1999 and 22 March 2000 did not constitute a fresh claim for asylum. Had he applied the correct test, he would have been unable to reject the new material at the preliminary stage. The only reasonable decision would have been that there was indeed a fresh application. That fresh application may or may not turn out to be well founded, but that issue properly falls to be determined when the fresh application is considered on its merits in proceedings which are subject to the petitioner's right of appeal to a special adjudicator.

[36] I shall accordingly repel the respondent's pleas-in-law, and grant decree of reduction of the decision letter dated 19 April 2000 issued by the Immigration and Nationality Directorate (No. 6/6 of process).

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