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Cite as: 2004 SCLR 524, [2003] ScotCS 168

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Hassan v. Secretary State Home Department [2003] ScotCS 168 (06 June 2003)

OUTER HOUSE, COURT OF SESSION

P1122/02

OPINION OF LORD BRACADALE

in Petition of

ABUL HASSAN

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondents:

for

Judicial Review against a decision of the Immigration Appeal Tribunal

________________

Petitioner: Govier; Skene Edwards, W.S.

Respondents: Drummond; H Macdiarmid, Solicitor for Secretary of State

6 June 2003

Introduction

[1] The petitioner seeks judicial review of a decision made by the respondent on 5 September 2002 refusing to treat representations made on the petitioner's behalf on 29 August and 3 September 2002 as a fresh application for asylum.

Previous history
[2] The petitioner was born on 5 March 1974 and is of Bangladeshi nationality. He arrived in the United Kingdom on 17 November 2000. On 20 June 2001 he applied for asylum. By letter dated 16 August 2001 (7/2 of process) the Secretary of State refused his application for asylum. The petitioner appealed to the Special Adjudicator. The appeal was heard by the Adjudicator on 8 April 2002. The petitioner was represented at the hearing by a solicitor. By a determination dated 7 May 2002 (7/1 of process) the Adjudicator refused the appeal. The petitioner applied for leave to appeal to the Immigration Appeal Tribunal, which leave was refused on 10 June 2002. A removal direction was made for 6 September 2002. By letters dated 29 August (7/3 of process) and 3 September 2002 (7/4 of process) the solicitors acting for the petitioner made a further application based on fresh information. By letter dated 5 September 2002 (7/5 of process) the Secretary of State refused the fresh application.

Original application
[3] In his original application, and before the Adjudicator, the petitioner's position was that he joined the Freedom Party in 1995 because the party would be good for Bangladesh and would improve housing, schools and education. At the time the Awami League was in power. The leaders of the Freedom Party, Colonel Farooq and Colonel Rashid, were currently in prison for the murder of the ex Prime Minister Sheikh Rahman. The petitioner had become the assistant secretary of the local branch of the party in December 1995. Although the Awami League was no longer in power the petitioner maintained that the League is still very strong and powerful throughout Bangladesh. In May 1997 a rally was organised by the Freedom Movement. The rally was organised by members, including the petitioner, in order to secure the release of the party's leaders. Members of the Awami League came with guns and cocktail bombs and the unarmed members of the Freedom Party had to run away. Thereafter the Awami League came to find the petitioner and burn his house down. He then went to Sylhete town and to Dhaka. He did not report the incident to the police as the police favoured the Awami League. He claimed that he was advised some ten days later that false charges had been made against him. He went into hiding in Dhaka as the Awami League had offered the sum of 20,000 Taka (£250) for information about him. He had to leave Dhaka because his money was running out. He came to the United Kingdom on 17 November 2000. He claimed that if he returned to Bangladesh he would be killed by members of the Awami League as the Awami League supporters were very angry with Freedom Party members because they had killed the leader of the Awami League. In his oral evidence before the Adjudicator the petitioner stated that the Awami League still wielded considerable power throughout the country and that he would not be safe in Dhaka. He would be targeted by the League and could not invoke police protection as the police force is corrupt and infiltrated by the Awami League.

[4] The Adjudicator's determination (7/1 of process) was promulgated on 7 May 2002. The Adjudicator came to the following conclusion:

"The appellant's account does not support persecution for a political belief. He has on no occasion been arrested or detained by the authorities. This is confirmed in his own oral evidence and interview record. The translated court orders produced pertained to involvement in a rally and appear to relate to law and order offences and point to prosecution rather than persecution. The Country Assessment Report notes that the law provides the accused with the right to be represented by counsel, to review accusatory material, to call witnesses and to appeal against verdicts (ibid. 4.2.2). The appellant managed to live untroubled by the Awami League for two years in Dhaka and indeed without coming to the attention of the authorities notwithstanding claims there were outstanding charges, albeit allegedly falsified, against him as well as an alleged reward for information on him. The Awami League is no longer the party in power. The appellant claims the police would be unable to afford protection but on his own admission he has never sought police protection. He also acknowledges that since 1997 he has not been engaged in any political activity. Travel is unrestricted throughout the country and although the appellant may have some difficulty in relocating elsewhere, these difficulties are more connected with a difficulty in obtaining employment than any political affiliation. The real issue to be addressed is whether the appellant would be at risk of persecution if returned to Bangladesh so as to engage the Refugee Convention. Taking account of the totality of evidence submitted, and notwithstanding the low standard of proof required in asylum cases, I do not believe that there is a real likelihood the appellant would be at risk of persecution for a Convention ground, political belief, if he were to be returned to Bangladesh. The appellant's alleged subjective fear is not borne out either within the context of his own account or the objective evidence produced."

[4] The Adjudicator dismissed the appeal.

The further representations
[5] The letter dated 3 September (7/3 of process) from the petitioner's solicitors was accompanied by a number of documents. The relevant passage in the letter is in the following terms:

"We would submit that these documents provide the basis for a fresh application for asylum. These documents provide evidence that the appellant's brother was assaulted by members of the Awami League on 15 March 2001. The cause of the attack was the Awami League members' desire to locate the appellant. A copy of prescription for a Mr Aklis Ali is also provided, confirming that the appellant's brother received medical treatment the day after the attack. As the appellant's brother carries a different surname from the appellant, we also attach birth certificates of the appellant's brother and of the appellant. You will note from the birth certificate that they have the same parents."

"In view of the recent attack on the appellant's brother we would submit that clearly there is a reasonable likelihood that our client will be attacked himself by the Awami League on return to Bangladesh. It is noted that at the Hearing submissions were made by that Awami League were still a powerful force in Bangladesh, despite not being in government. This is borne out by this incident.

"We would further submit that from the date stamp on the envelope attached, it is clear that this material was not available to our client at the time of his Determination. We would further submit that this fresh evidence is both material and significant and urge the Secretary of State to conclude that this material represents a fresh claim for political asylum."

[6] One of the documents included in the bundle attached to the agent's letter was a letter, together with a translation into English. The letter appeared to come from a government official and was addressed to the officer in charge at Biswanath Police Station, Sylhete. It stated that on 15 March 2002 at about 11.30pm a group of Awami League terrorists, led by an Awami League leader, came to Abul ... house fully armed. As they did not find Abul Hassan they beat up his brother and wanted to know Abul Hassan's present address. The terrorists became very violent when he refused to give them the address and started to beat him very badly on his arms and head. He had been brought to the official's office injured and bleeding. The official requested the officer in charge of the police station to take any necessary action according to the country's present law.

The decision letter
[7] The reasons for refusing to treat the application as a fresh application are set out in two paragraphs of the respondent's letter dated 5 September 2002 (7/5 of process) in the following terms:

"The Secretary of State would emphasise that the Adjudicator when determining your client's appeal has already considered your client's fear or return from Awami League members and stated 'the appellant managed to live untroubled by the Awami League for two years in Dhaka and indeed without coming to the attention of the authorities notwithstanding claims there were outstanding charges, albeit it allegedly falsified against him. The Awami League is not longer the party in power. On his own admission he has never sought police protection (paragraph 8 of the Determination).' The Secretary of State therefore believes that the basis of your client's latest claim, that of persecution at the hands of the Awami League in Bangladesh, is very similar to his original claim, and moreover is the same as the original claim in its lack of credibility."

"The Secretary of State has considered the photocopies of the documents submitted allegedly a report stating that your client's brother was beaten up by the Awami League terrorists. The Secretary of State would emphasise that the same report also indicates that the police would be able to investigate the matter according to the country's present law. Furthermore, when giving oral evidence at his appeal hearing, your client admitted to the Adjudicator that he has never been arrested or detained by the authorities in Bangladesh nor has he reported any incidents to the police. The Secretary of State therefore does not accept that the police in Bangladesh will either be unwilling or unable to afford protection to your client on return. He is of the view that your client has failed to explained why the said report dated 17 March 2002 was not placed before the Adjudicator at his appeal hearing on 19 April 2002. Even if this report were unavailable, your client has failed to explain why this incident was not brought to the attention of the Adjudicator at the appeal hearing. He is of the view that your client has mentioned this incident at this late stage only to frustrate his removal from the United Kingdom and had no other legitimate purpose for doing so. The Secretary of State has concluded, therefore, with regard to the points you have raised that the claim advanced is not sufficiently different from the earlier claim to admit of 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."

The relevant law
[8] In order to qualify for asylum under the Immigration Rules (H.C. 251, 1990), the applicant must have the status of a refugee under Article 1A(2) of the Geneva Convention Relating to the Status of Refugees (Geneva, 28 July 1951; Cmmd. 9171), as amended by the 1967 Protocol (New York, 31 January 1967l; Cmmd. 3906). The first matter to be established under the Article is that the claimant is outside the country of his nationality owing to a well-founded fear of persecution. Article 1A(2) of the Convention and Protocol provides the definition of a refugee:

"The term 'refugee' shall apply to any person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or, owing to such fear is unwilling to avail himself of the protection of that country."

The Rules stipulate:

"334 A person will be granted as asylum in the United Kingdom if the Secretary of State is satisfied:

(a) he is in the United Kingdom;

(b) he is a refugee as defined by the Convention and the Protocol; and

(c) refusing his application would result in his being required to go in breach of the Convention and Protocol to a county in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

336 An application which does not meet the criteria set out in paragraph 334 will be refused."

[9] The applicant may make a fresh application for asylum even if an earlier one has been refused. The rules make provision for the determination of whether the further application falls to be treated as a fresh one requiring substantive determination. Rule 346 provides:

"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:

(i) is not significant; or

(ii) is not credible; or

(iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined."

[9] This Rule in its present form was formulated after the English Court of Appeal decision in R v Secretary of State for the Home Department ex parte Onibiyo [1996] 2 WLR 490 where Sir Thomas Bingham, M.R. said, in relation to an earlier formulation of the rule (502G-H):

"The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably be 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."

[10] In Secretary of State for the Home Department v Coskun Boybeyi [1997] Imm. A.R. 491 Nourse L.J. 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, M.R., in ex parte Onibiyo [1996] is to give proper consideration to every potential 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 objections 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."

[11] In a later case Sedley J. had reformulated paragraph 3(a) by omitting the word "intrinsically". This was noted with approval by Nourse L.J. who later went on (at p 494) to quote the passage from the opinion of the Master of the Rolls in Oniboyo quoted above and add:

"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 [502], 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 importance 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."

[12] In the context of a case where the fresh evidence related to the same circumstances as before Nourse L.J. again quoted Sedley J with approval (at p. 495):

"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 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 enquiry 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."

[13] It is clear from the authorities that there are two stages in the consideration of a fresh application under rule 346. The importance of treating these separate questions separately is stressed by Lord McFadyen in Nazir v Secretary of State for the Home Department 2002 SLT 58 at page 65, paragraphs 22 - 24:

"[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."

The petitioner's submissions
[14] Before me Mr Govier, who appeared on behalf of the petitioner, moved at the outset to amend the petition by substituting a new plea-in-law 1 for the petitioner in the following terms:

"The respondent having erred in law et separatim acted unreasonably in deciding to refuse to treat the representations made on the petitioner's behalf on 29 August and 3 September 2002 as a fresh application for asylum, the decision should be reduced."

Miss Drummond, who appeared for the respondent, did not oppose that amendment and I allowed the plea-in-law to be amended as it properly focused the issue which I required to address.

[15] Mr Govier submitted, firstly, that the respondent had acted outwith the terms of the jurisdiction granted to him in terms of the relevant immigration rule and had thus erred in law. Secondly, he submitted that the respondent had acted unreasonably in refusing to treat the petitioner's representation as a fresh application for asylum. As the argument developed, it focused on the second of these submissions.

[16] Mr Govier stressed the two stage requirement of the decision-making process by the Secretary of State. The Secretary of State had to decide whether to treat the new application as a fresh claim under Rule 346 and if he held that it was, he would then have to decide whether or not to uphold the claim. He made reference to the opinion of Lord McFadyen in Nazir (2002 S.L.T. 58) at page 65 paragraphs [23].

[17] In his attack on the terms of the letter of decision by the respondent, Mr Govier submitted that the criticism made by the Secretary of State, that the new material is very similar to the original claim, cannot amount to a proper criticism of the new evidence at all. The fact that it is similar is purely a function of the new evidence relating to the same facts that were the subject of evidence before the Adjudicator. New evidence is not to be rejected merely because it provides further evidence in relation to assertions which have already been before the Secretary of State and the Adjudicator in the previous application (see Oniboyo and Boybeyi).

[18] Mr Govier pointed out that the incident which gave rise to the further evidence occurred shortly before the Hearing before the Adjudicator and was not available to the applicant until after the Hearing. The petitioner was in the United Kingdom and did not know of the incidents until after the appeal was heard. Rule 346 referred to the material being available to the applicant not whether it was in existence.

[19] Mr Govier submitted that no reason is given by the respondent for the observation which he makes on the lack of credibility of the new material. There is no indication of what criteria the respondent has applied in reaching the conclusion with respect to credibility. He simply flatly stated that it was not credible. Mr Govier referred to Boybeyi at page 496-7 and the question of apparent credibility. There was nothing apparently incredible about the information.

[20] Mr Govier submitted that the references to the police in the letter of refusal were irrelevant to the point of the new evidence which related to the Awami League itself. The key question was the petitioners' risk at the hands of the Awami League and further evidence showed continued violent interest in him. Questions involving police protection are questions which would have significance at the second stage of determining the application itself.

[21] Mr Govier referred to the first sentence of the final paragraph of the Secretary of State's letter which was in the following terms:

"For the reasons given, the Secretary of State is not persuaded that the evidence submitted would lead him to a different conclusion."

Mr Govier submitted that it was difficult to read that sentence without thinking that the Secretary of State, despite the fact that he had refused to treat the representation as a fresh application, had gone on to treat them as if they were a fresh application. This indicated that the respondent had not borne in mind the two stages.

The respondent's submissions

[22] Miss Drummond referred to the definition of a refugee in Article 1A of the Geneva Convention. She pointed out that there were two main parts to it: firstly, that the person required to have a well-founded fear of being persecuted, and secondly, that he is unable or unwilling to avail himself of the protection of that country. She pointed out that the asylum seeker had to show failure of State protection. This was relatively easy where the State were persecuting but if the persecution came from a non-state agency, then the petitioner required to show that in addition to the persecution the State was unable to give him protection.

[23] Miss Drummond submitted that the main question was whether the fresh representations were different from the earlier claim, such that there was a realistic prospect that the claim would succeed. The tests of credibility, significance and unavailability are part of the rule and it was relevant for the Secretary of State to consider credibility and significance at the stage of considering whether to treat the application as a fresh application. She referred to the case of Nkereuwen v The Secretary of State for the Home Department 1999 [Imm. A.R.] 267 which she submitted was similar to the present case.

[24] Under reference to Nazir Miss Drummond submitted that the petitioner's case fell into the category of new evidence about what had already been claimed and it was therefore relevant to consider the question of credibility. In addition, regard must be had to the question of significance. Addressing the question of significance required some looking forward to see if there was a realistic prospect of a different outcome.

[25] She submitted that the immediate question was whether the Secretary of State had acted unreasonably in terms of the Wednesbury test. This required that the decision would be unreasonable in the sense of being perverse. It would require to be shown that no reasonable decision-maker properly addressing the issue could have made the decision.

[26] Miss Drummond referred to the respondent's reasons for refusing the original application which were firstly that the respondent did not believe that the petitioner was of any interest to the authorities. Secondly, the respondent did not believe that the petitioner was being persecuted by the Awami League or the authorities. Thirdly, the respondent found the application incredible. The attack had occurred in 1997, three years before the petitioner left and he had managed to stay in Dhaka for two years without coming to the attention of the authorities.

[27] Miss Drummond pointed out that part of the new material appeared to constitute a request from one arm of the State to another to take some proceedings in relation to what had happened. Thus although it might be evidence of persecution it was certainly not evidence of failure of State protection. On the contrary, the letter showed that the authority was writing in the full expectation that protection would be given. She submitted that unless the petitioner could show that there had been a failure of State protection then there was no realistic prospect that the conditions set out in paragraph 334 would be satisfied. New evidence of persecution could not be enough in itself in a case where the persecution was by non-state elements. The petitioner would require to show both persecution and a failure of State protection. In this respect, the new evidence was against the petitioner and was supportive of the Adjudicator's earlier decision. She submitted that for that reason alone the test in Rule 346 had been met. She submitted that no reasonable Secretary of State properly addressing himself on the law of immigration and asylum could consider that this fresh evidence provided a realistic prospect of a different outcome. In this respect, an essential agreement of the claim had not been established.

[28] Miss Drummond suggested that the Secretary of State's comments on the question of availability should be regarded as no more than an observation. She submitted that this had not been used as a factor in the consideration of the decision-making process by the respondent. It was simply an observation of the oddness of it not being available. The main point was that however credible the material was and accepting that it was not available, it could not realistically affect the outcome of the case.

[29] Miss Drummond submitted that it was wrong to suggest that the respondent had gone on to treat the fresh representations as if he was making a decision on an application. The Secretary of State had properly applied the terms of Rule 346.

The petitioner's submissions in reply
[30] In reply Mr Govier sought to deal with the suggestion that the petitioner was unable to show a lack of State protection against persecution by non-state elements. he suggested that the principal issue in the petitioner's claim is his political activity, and that as a result of that political activity he would be at risk of persecution if he returned to Bangladesh. It was from the political activity of the petitioner that the claim arose. A subsidiary point following from that logically was the question of State protection or the lack of it. If he was not involved in political activity, and if he was not targeted by the Awami League, the question of whether or not he was afforded State protection would not be relevant. He submitted that it may well be that whatever conclusion the Adjudicator reached about sufficiency of State protection on the basis of the earlier evidence, those conclusions would be changed if the new evidence of continued interest of the Awami League in him was brought before a new Adjudicator. The question of police protection was a subsidiary point and evidence relating to that must be treated as relating to part of the case to which it obviously relates. It would be improper for the respondent to reach a conclusion about the subsidiary element. That would be indicative of the Secretary of State moving on to the second phase.

Discussion
[31] In addressing the question of whether the letters of 29 August and 3 September should be regarded as amounting to a fresh application the respondent is required to follow the two stage approach identified in the cases to which reference has been made above. He is required to decide whether the new representations amount to a fresh claim for asylum and, secondly, if so, whether the new claim for asylum is well founded. The decision on the first question is not appealable to the special adjudicator, whereas the decision on the second question is appealable. This means, as Lord McFadyen pointed out in Nazir (at para [23]), that it is essential to treat these separate questions separately, and that it is necessary for the respondent 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.

[32] In the decision letter (7/5 of process) the respondent deals first with the question as to whether the claim relates to the same circumstances as before. He makes reference to the determination of the Adjudicator and concludes:

"The Secretary of State therefore believes that the basis of your client's latest claim, that of persecution at the hands of the Awami League in Bangladesh, is very similar to his original claim," (emphasis added).

In my opinion this conclusion fails to take account of the nature of a case in which the basis for a fresh application is that fresh evidence relating to the same complaint has become available. In such a case it will be likely that the subject matter of the fresh evidence will be very similar to the subject advanced in the original application.

[33] At the first stage of deciding whether to treat the representations as a fresh application the respondent required to ask himself the following questions: does the claim relate to substantially the same circumstances as before? If so, is there nevertheless fresh evidence in support 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? (see Boybeyi). In my opinion the respondent has failed to approach the matter in this way. He has not asked himself the correct questions.

[34] On the issue of credibility the respondent has simply added to the above conclusion the following: "and moreover is the same as the original claim in its lack of credibility."

[35] It is clear from the passages in the judgments in Oniboyo and Boybeyi quoted above, that, in order to pass the test of credibility at the stage of consideration of whether representations amount to a fresh application, all that is required is apparent credibility. The respondent does not appear to have addressed the question of apparent credibility at all. He appears to have formed a view about credibility more appropriate to the second stage of the decision making process. Furthermore, no explanation is given by the respondent as to why he has reached the conclusion that the representations lack credibility. There is nothing in the documents themselves that point to a lack of credibility. The conclusion appears to have been arrived at by a comparison with the conclusion arrived at by the Adjudicator in the earlier application. In my opinion this approach is not consistent with the approach to credibility required by the authorities at the first stage.

[36] The respondent dealt with the question of availability in this way:

"He is of the view that your client has failed to explain why the said report dated 17 March 2002 was not placed before the Adjudicator at his appeal hearing on 19 April 2002. Even if this report were unavailable, your client has failed to explain why this incident was not brought to the attention of the Adjudicator at the appeal hearing. He is of the view that your client has mentioned this incident at this late stage only to frustrate his removal from the United Kingdom and had no other legitimate purpose for doing so."

I am unable to accept Miss Drummond's submission that this passage in the decision letter should be treated as no more than an observation and should not be regarded as a factor in the decision-making process. The question of availability is one which the respondent was bound to take into account in the making of the decision. The incident which gave rise to the representations occurred shortly before the hearing before the Adjudicator and on the face of the documents it appeared that they were not available to the petitioner until after the hearing.

[37] On the question of significance Miss Drummond submitted that, even if the material was accepted as credible and it was accepted that it was not available to the petitioner at the time of the hearing, it could not realistically affect the outcome of the hearing. She submitted that unless the petitioner could show that there had been a failure of State protection then there was no realistic prospect that the conditions set out in paragraph 334 would be satisfied. New evidence of persecution could not be enough in itself in a case where the persecution was by non-state elements.

[38] I accept that, as Miss Drummond submitted, in relation to the question of significance some looking forward is necessary in order to see whether there was a reasonable prospect of a different outcome. In addition, it seemed to me that there was some force in Miss Drummond's submission that the new material could be interpreted as undermining the necessary requirement in an asylum case to demonstrate a failure of state protection. Mr Govier submitted that this was a matter more properly to be considered in the determination of an application rather than in deciding whether to treat the representations as a fresh application. It seems to me that this point is a narrow one. It is necessary to examine the approach adopted by the respondent.

[39] The respondent dealt with the question of state persecution in the letter of decision (7/5 of process) in this way:

At the first stage of considering whether the representations amounted to a fresh application, the correct question to ask is whether the new evidence: "Would probably have an important influence on the result of the case, though it need not be decisive." (Boybeyi). In my opinion the passage from the decision letter quoted above suggests that the respondent has not asked this question but rather has come to a concluded view more appropriate to the second stage of determining the application.

[40] I am, therefore, of the opinion that the approach of the respondent to the question as to whether the representations amount to a fresh application is not in accordance with the approach set out in the cases to which reference has been made. I conclude that in the respects set out above the respondent misdirected himself.

Result
[41] For the reasons set out above I am of the opinion that the respondent has misdirected himself in holding, for the reasons set out in the decision letter, that the letters of 29 August and 3 September 2002 did not constitute a fresh claim for asylum. It was unreasonable not to treat the representations as a fresh application. I fully recognise that upon consideration of the fresh application the respondent may determine it against the petitioner but in these circumstances the petitioner would have a right of appeal to a special adjudicator.

[42] Accordingly, I shall sustain the petitioner's amended first plea in law and grant decree of reduction of the decision letter dated 5 September 2002.