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Cite as: [2004] ScotCS 269

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Karkhanehche, Re Application for Judicial Review [2004] ScotCS 269 (17 December 2004)

OUTER HOUSE, COURT OF SESSION

P1536/03

OPINION OF LORD JOHNSTON

in the petition of

MOHAMMED REZA KARKHANEHCEHE

Petitioner;

for

Judicial Review of a refusal of leave to appeal by the Immigration Appeal Tribunal

________________

Act: Simpson, Anderson Strathern

Alt: Stewart, H F Macdiarmid

17 December 2004

[1] This is a petition seeking judicial review of a refusal by the Immigration Appeal Tribunal to grant leave to appeal against the decision of the adjudicator denying the petitioner asylum within the United Kingdom which he entered clandestinely.

[2] The crucial findings of the adjudicator are as follows:-

"Findings

11. I had to decide whether the Appellant's account was credible. In this case there were a number of issues some of which were raised by the Respondent.

[a] The Respondent questioned the Appellant's account of how his lady friend was able to meet with him in the first instance and how she seemed to be able to meet him thereafter with ease in the light of the restrictions of movement and segregation imposed on women in Iran. In response to this the Appellant indicated that the lady was able to leave the house she was staying in to meet him as she was separated from her husband. With regard to their first meeting the Appellant felt that she had possibly stopped his car as it looked like a taxi.

[b] When the Appellant was discovered at the villa by the authorities the Respondent felt there were not sufficient witnesses to be able to prove adultery. In response to this the Appellant said there were 2 or 3 on top of the wall but he did not know how many there were in total.

[c] The Respondent considered that in general terms the Appellant's account was vague and lacking in detail. In particular, he highlighted the Appellant's failure to indicate how the authorities would have known about his escapades and the lack of information as to what had happened to his lady friend. The Appellant did provide some further information on these in his witness statement and his oral evidence.

[d] The Respondent felt that the Appellant's failure to leave Iran immediately after he was discovered damaged his credibility. The Appellant indicated that he had left 11 days later and he had been in hiding waiting for an agent to be arranged.

[e] The Respondent felt that it would have been appropriate for the Appellant to claim asylum in Turkey or any of the other countries he passed through if he had genuinely been in need of international protection. The Appellant indicated said he had to stay in the back of the lorry nearly all the time and he did not know what countries he was in.

[f] The Respondent considered that the fact the Appellant did not claim asylum immediately he entered the UK damages his credibility.

[g] The Respondent pointed out that at no stage had the Appellant named his lady friend which damages his credibility. Even when this was put to him at the hearing he did not name her. Instead he said that he did not know how this could happen. It might have been a translation problem. His Representative indicated that this did not damage his credibility. He could easily have told a lie and made a name up if his story was false.

[h] There was also a long discussion in cross examination relative to the court documents which had been produced in evidence. In the Appellant's account there were other documents relative to the Appellant's alleged crime of adultery still in Iran. There was the question of why he did not have copies of these when he had managed to get sent the documents which were in evidence. The Appellant said that it was difficult to get copies of documents sent from Iran but he could get them if it were necessary.

[i] Given that the last of these documents were issued in the year 2000 and that the Appellant still had contact with his brother in Iran there was the question as to whether the fact that the Appellant did not know what had happened to his case damaged his credibility.

[j] The Appellant mentioned for the first time in his oral evidence that his lady friend had previously told him she was divorced. When this was pointed out to him at the hearing he answered that the fact that he had asked her for a temporary marriage showed that she did not have a husband. He said it was obvious.

[k] There was a discrepancy in the Appellant's evidence concerning details of his arrest in 1996. In his original notes he said that his first arrest lasted for 20 hours whereas at later stages of his evidence he said 3 days. I had to consider the Appellant's evidence in the round when deciding on his credibility. Some of the points at issue were answered by the Appellant and I was not worried about points [d], [e] and [f] where I found the Appellant's explanations satisfactory. I also considered that in evidence he had answered the points to some degree in [c]. However this still did leave a significant number of concerns in my mind. I was particularly concerned about the circumstances in which the Appellant and his lady friend met in the first place and the ease with which they were able to conduct their relationship particularly in public. The reason for my concerns was the restrictions placed on the movement of women in Iran. I was also concerned that the Appellant did not ever give his lady friend a name even when the matter was put to him in evidence. While accepting the Appellant's Representative's point might have some validity I was not wholly convinced by it. I was also concerned as to the fact that the Appellant indicated that he believed that his lady friend was divorced for the first time at the hearing. Not only was I not convinced by his answer when this was put to him the incident was symptomatic of a feeling I had as to a general vagueness on the Appellant's part through his evidence relative to the lady friend's exact status. I was also concerned that the Appellant did not have copies of the other court documents he claimed were in existence and felt that if he could get some of them he could get others. Further, given the lines of communications to Iran which were available to the Appellant I considered it very strange that given the last court documents against him were in 2000 he did not know what had happened to the case. It may well be that some of my concerns are not of themselves conclusive but I came to the conclusion that taken all together they were sufficient to convince me that the Appellant's account was not credible. I decided, therefore, that the Appellant had not been involved in adultery as claimed by him. In this connection, the 2 court documents were merely 2 pieces of evidence to be weighed against the other evidence. The Respondent had questioned their authenticity on the grounds that their format did not comply totally with the recognised format and that arrest warrants were not served. Further, false documentation of this type could be obtained relatively easily in Iran. On the other hand it did appear that the document referred to as an arrest warrant could in fact be a summons. In the end of the day I was not sufficiently convinced of the authenticity of the documents given the question marks against them to alter my overall view of the evidence. Given my finding that the Appellant had not committed adultery I then had to consider whether the Appellant would be in any danger if returned to Iran. I had to consider whether the 2 arrests which the Appellant claimed to have suffered in 1996 and 1998. I accepted that the Appellant had incurred these arrests. However, the arrests were some time ago, were of a relatively minor nature and they had been dealt with at the time. Certainly, the Appellant did not find these arrests sufficiently upsetting to give up his line of business and he did not receive any harassment from the authorities for these arrests between 1998 and his leaving in 2000. For these reasons, I concluded that the Appellant would not be of interest to the authorities on his return because of these arrests. Taking into account the background information relative to the treatment of returned failed asylum seekers in Iran and the fact that the Appellant was of no interest to the authorities I concluded that the Appellant would be in no danger if he returned to Iran. The Appellant, therefore, does not have a well-founded fear of persecution in Iran for a 1951 Convention reason and his asylum claim fails. I then had to consider whether the terms of either Articles 2 or 3 of the 1950 Convention were engaged. Given my finding on the asylum claim I decided that neither Article was engaged.

[3] Thereafter the petitioner lodged grounds of appeal five in number before the Immigration Appeal Tribunal who gave the following reasons.

"REASONS FOR DECISION

There is no merit in the grounds of application.

If the adjudicator does not believe the whole of a claimant's account, he is entitled to find the claimant not credible, particularly so where he does not believe matters going to the very core of the claim.

It was open to the adjudicator to find, on the evidence before him, that the claimant did not even name the lady in question, is relevant to the consideration as to whether or not the claimant's account of having committed adultery with her credible.

Ground 3 relates to the respondent's comments on the claimant's account, not to the adjudicator's findings. Ground 4 criticises the adjudicator for relying on the claimant's "general vagueness". These were to the material status of the lady in question. The adjudicator was entitled to take this into account.

An appeal would have no arguable prospect of success".

[4] It is against that finding that this petition for judicial review is now taken, the object being to require this court to order the Immigration Appeal Tribunal to hear the appeal. That is the limit to what the petition can hope to achieve in this process.

[5] The parties referred me to three authorities. Raidl v Austria (application no. 25342/94 to the Commission on Human Rights, Singh v Secretary of State for Home Affairs 2000 SC 219 and an unreported case from the Immigration Appeal Tribunal, Ahmed v Secretary of State for the Home Department 2000 UK IAT 00439.

[6] The principal attack by counsel for the petitioner in respect of the adjudicator's findings related to his rejection as authentic, the two documents 6/6 and 6/7 respectively apparently a court summons and an arrest warrant although there was some questions whether the latter could also be a summons. He did so under reference to 6/8, a letter from the British Embassy in Tehran which he submitted the adjudicator had wrongly used to challenge the authenticity of the documents which the latter effectively branded quite unreasonably as forgeries. The reasoning in that respect, he submitted, was wholly inadequate since the documents were designed to establish the genuine nature of the claim being made by the petitioner that if he returned to Iran he would be prosecuted for adultery and stoned to death. Counsel highlighted what he alleges the adjudicator's reason in this respect namely that the documents format did not comply totally with the recognised format. Alleged arrest warrants had not been issued and a false documentation of this type could easily be obtained in Iran. These reasons, he said, were not sufficient to brand the documents as forgeries, not least because of the most unsatisfactory nature of the letter from the British Embassy. He referred also to a statement of the Danish Government with regard to the penal code of Iran which supports his position as to the consequences of committing adultery which the petitioner admitted he had in fact done. The issue of credibility was to be determined on a relatively low assessment, albeit the burden of proof was on the petitioner, and there could be no doubt that being subjected to the risk of torture or death constituted at least in terms of the Human Rights Convention inhumane treatment (Raidl). In short the position of counsel for the petitioners was the adjudicator, albeit having certain doubts as the case progressed about the general conduct and the attitude of the petitioner, had gone far to far in rejecting the documents on the grounds he did and the matter therefore should be at large before the Immigration Appeal Tribunal.

[7] Counsel for the Secretary of State under reference to Singh submitted that the adjudicator was not required to go through a mechanical and elaborate process of decision making. All that was required was that his reasoning should be capable of support against the general test to be applied in a review of decision which is essentially one of fact. It has to be shown that the adjudicator had misdirected himself not least by taking into account factors which he should not have taken into account or vice versa or reaching a decision which was wholly insupportable in rational terms. Furthermore in Ahmed the Tribunal had laid out carefully the approach that should be taken with regard to the issue of forged documents, the issue not so much being whether they were forgeries but rather whether they were sufficient to demonstrate the credibility of the account given by an applicant. The summary of the position taken up Mr Justice Collins in that case was as follows:

"In summary the principal set out in this determination are:

1. In asylum and human rights case it is for individual claimant to show that a document upon which he seeks to rely can be relied upon.

2. The decision maker should consider whether a document is one on which reliance should be properly placed after looking at all the evidence in the round.

3. Only very rarely will there be the need to make an allegation of forgery or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principals 1 and 2".

[8] Mr Stewart accepted at once that, if properly understood, the decision of the adjudicator was based upon a determination by him that the relevant documents were forged he would have gone far to far. However what he submitted, properly understood, the decision of the adjudicator was that he had looked at the matter in the round, including the relevance or otherwise of the documents, in determining that he did not find that the petitioner to be credible on material matters, not least that he was liable to be persecuted for adultery if he returned to Iran. Thus, he submitted, the adjudicator had properly applied himself to the correct test and had given adequate reasons for not accepting the petitioner's position, while obviously taking into account his own views about the authenticity of the documents. His decision was, in fact, based overall on his general reflection of the evidence. The reasons of the Immigration Appeal Tribunal for refusing the appeal clearly encompassed the five grounds of appeal lodged by the petitioner albeit there was only four headings in the document.

[9] Having looked carefully at the decision of the adjudicator, I am entirely satisfied that the basis of the attack upon it by counsel for the petitioner cannot be sustained. I consider that the adjudicator has approached the matter both generally and particularly in relation to the documents on a fair and rationed basis. In a reasoned and cautious manner he has effectively reflected the principles laid down by Collins J in Ahmed. He has looked at the matter in round. He has formed the view that the conduct and indeed statements made to him by the petitioner raised serious doubts as to his credibility and those doubts are reinforced by concerns, and I put it no higher than that, that the adjudicator quite legitimately has about the authenticity of the documents. He has not, contrary to what counsel argued, found them to be forgeries. He has merely used them as part of his consideration as to whether or not the petitioner's position is a genuine one. To my mind, considerable force should be attached to his finding that the petitioner did not seem to know the outcome of the apparent case against him in Iran which, given modern day communications, is extraordinary in respect of a person who alleges that he is under the risk of being stoned to death if he returns to his native country.

[10] It accordingly follows that the decision of the Immigration Appeal Tribunal to refuse leave to appeal is properly based. I also accept the position of counsel for the Secretary of State that that Tribunal has in fact addressed the grounds of appeal put forward by the petitioner albeit under only four headings.

[11] In these circumstances I consider that the Immigration Appeal Tribunal came to a correct decision or at least one that is sustainable against the background of the adjudicator having reached the decision he was entitled to make on the facts, again rationally supported.

[12] By way of postscript I was informed that there is a process available for a fresh application based on fresh evidence and in these circumstances the averments in the petition with regard to the availability of further evidence should be directed to that position rather than reflect upon the present case at this stage. I offer no further view in that respect.

[13] In these circumstances for the reasons I have given this petition will be dismissed.