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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Zaery, Re Application for Judicial Review [2005] ScotCS CSOH_10 (18 January 2005)
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Cite as: [2005] CSOH 10, [2005] ScotCS CSOH_10
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Zaery, Re Application for Judicial Review [2005] ScotCS CSOH_10 (18 January 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 10 |
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P1309/03
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OPINION OF LORD MENZIES in the Petition of FARIBA ZAERY Petitioner; for Judicial Review of a decision by the Immigration Appeal Tribunal to refuse leave to appeal
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Petitioner: M.V. Ross; Anderson Strathern, W.S.
Respondent: A.J. Carmichael; H.F. Macdiarmid, Solicitor to the Advocate General
18 January 2005
[1] The petitioner is an Iranian national. She was married at the age of 16 in 1983 and has two children, now aged 20 and 17. Her husband was violent and abusive towards her, and she sought divorce from him on three occasions unsuccessfully. In May 2001 the petitioner left her husband and sought advice from a divorce bureau. She commenced a sexual relationship with her male divorce caseworker. She was divorced in September 2001. She avers that under Iranian law a divorcee continues to be regarded as married for 100 days after the date of divorce and that sexual relations by the divorcee during that period are regarded as adulterous. In October 2001 the petitioner's husband saw her with her lover, and thereafter the petitioner was summoned to attend court. She was told that her husband had alleged that she was involved in a sexual relationship prior to their divorce, and that her husband's allegations would be investigated thoroughly. The petitioner avers that she has admitted adultery. [2] Under Shari'a law in Iran the penalties for adultery are severe and extend to execution. Lesser penalties are also severe. Sexual relations between persons who are not married are also forbidden and attract severe punishment, including physical punishment of up to 100 lashes, forced marriage or imprisonment. Under Iranian law when a couple divorce, custody of any children of the marriage automatically goes to the father, subject to limited qualifications which do not apply to this case. A mother who takes custody of her children in these circumstances may be regarded by the court as having kidnapped them and will face severe penalties. The rights and testimony of women are held in low regard by the Iranian courts. [3] The petitioner avers that having been summoned to attend court she decided to flee Iran. She obtained airline tickets for herself and her children. She and her children left Iran in late December 2001 and arrived in the United Kingdom on 31 December 2001. Following her departure from Iran she was told by her mother that a further court summons had been received citing the petitioner to attend court on charges of adultery/immoral behaviour. Upon her arrival in the United Kingdom the petitioner claimed asylum. Her claim was refused. After sundry procedure her appeal against refusal was heard by an adjudicator on 2 June 2003. The petitioner and her daughters gave evidence at this hearing. The adjudicator dismissed the petitioner's appeal by determination dated 6 June 2003. The petitioner applied to the Immigration Appeal Tribunal for permission to appeal against the adjudicator's determination. By determination dated 4 August 2003 the Immigration Appeal Tribunal refused the petitioner leave to appeal. The petitioner seeks judicial review of the decision of the Immigration Appeal Tribunal to refuse leave to appeal. [4] Counsel for the petitioner accepted that the adjudicator had accurately summarised the petitioner's case in the last sentence of paragraph 14 of his determination:"Her case depends on proving a real risk of persecution or ill-treatment arising from the adultery charge, failure to attend court or the removal of the children."
Counsel maintained that if the petitioner could establish a real risk of persecution or ill-treatment on any one of these three categories she would be entitled to protection. She maintained that the adjudicator had erred in law and failed to have regard to the whole facts of the case before him in respect of each of these three categories, and by way of further submission she maintained that the adjudicator's assessment of the petitioner's credibility (insofar as there was any assessment of this) was flawed and inadequate. Her submissions accordingly fell into four parts, and if she could demonstrate an arguable case on any one of these four parts, then the determination of the Immigration Appeal Tribunal refusing leave to appeal fell to be reduced.
[5] On the issue of adultery, counsel for the petitioner suggested that there was an element of uncertainty as to whether the divorce decree issued on 3 September 2001 constituted the beginning or the end of the 100 day period within which a husband may change his mind and take his wife back. The petitioner's statement suggested that the 100 day period began on 3 September 2001, although the solicitor acting on behalf of the petitioner at the adjudicator's hearing appears to have suggested that the 100 day period had been observed by that date. If the 100 day period began on 3 September 2001 the petitioner's position would be worse under Iranian law than if that was the termination date; however, whether the 100 day period had expired or not, the petitioner was at substantial risk of facing inhumane or degrading punishment if returned to Iran, (a) because sexual intercourse by a woman outside marriage is illegal and is visited with very severe punishment, and (b) in any event the petitioner has admitted that she committed adultery before 3 September 2001. Paragraph 16 of the adjudicator's determination was therefore neither well-founded in evidence nor a proper assessment of the risk of the petitioner's persecution or ill-treatment on this ground. [6] With regard to the petitioner's failure to attend court in answer to a summons, a copy of the summons and a copy of a certified translation were before the adjudicator. This summons, and the petitioner's failure to attend court in response to it, was referred to in the statement by the petitioner and in the statements of each of her two daughters, who also gave evidence before the adjudicator and confirmed the petitioner's evidence. The expert report by Dr Rashidian, which was also before the adjudicator, confirms the "authenticity of the structure, style, stamp and court reference number is genuine. Since I have not studied the original, I am not in a position to comment on the content of the document." [7] For the respondent a letter was relied on bearing to come from an entry clearance officer in the visa section of the British Embassy in Tehran. It is dated 4 December 2000 (about two and a half years before the adjudicator's hearing, and more than one year before the petitioner left Iran). The addressee is not identified, nor is the author, and the letter is unsigned. In commenting on an "alleged court summons" which cannot be connected with the present case, the author states inter alia as follows:"Outside every court in Iran any number of freelance typists can be found who produce all sorts of legal and bureaucratic documents at very low cost. I can see no reason why a spurious summons could not be produced by this means."
The adjudicator gives the court summons no weight, observing at paragraph 21 of his determination that "there is no reason to doubt the information that such documents can readily be obtained in Iran". On the basis of the evidence before him he was not entitled to reject the court summons entirely and to give it no weight. In doing so he acted unreasonably.
[8] With regard to the removal of the children, the adjudicator narrates in passing at paragraph 12 of his determination the submission of the petitioner's solicitor that the petitioner "would face serious repercussions from the State on charges of adultery, failure to attend court, removing the children in defiance of the court custody order..." and as already noted touches on this again at paragraph 14 as one of the matters on which her case depends. The point is focused at p.7 of Dr Rashidian's report, and it is clear from paragraph 5.142 of the Home Office CIPU Report of October 2002 that legal custody of the petitioner's children would have been awarded to the petitioner's former husband. Despite the adjudicator identifying this as one of the crucial factors on which the petitioner's case depended, he did not proceed to consider this at all. [9] Finally, counsel for the petitioner submitted that the adjudicator's assessment of the petitioner's credibility was so unclear and without reasons as to be flawed. She referred me to the three dicta which were adopted by Lord Macfadyen in Singh v Secretary of State for the Home Department 1998 S.L.T. 1370 at 1374K, and in particular the third dictum:"If there is a question of disbelieving anything an applicant has said that ought to be spelt out. It is obviously desirable to indicate specifically why any witness is being disbelieved."
The adjudicator's reasons for disbelieving the appellant must be set out in the letter of determination. In this case the adjudicator has made no express finding that the petitioner was not a credible witness. He does not set out an assessment of her credibility nor his conclusions on this assessment. There are passing references to weaknesses in her evidence, and criticisms of the petitioner, but the decision leaves the informed reader and the court in real and substantial doubt as to the reasons for the adjudicator's disbelieving the petitioner.
[10] For each and all of the foregoing reasons counsel for the petitioner urged me to reduce the decision of the Immigration Appeal Tribunal refusing leave to appeal. [11] For the respondent, Miss Carmichael sought dismissal of the petition. On the questions of credibility and adultery, she referred me to the decision of the First Division in Daljit Singh v Secretary of State for the Home Department 2000 S.C. 219, which emphasised that the proper and well-established test for assessing the adequacy and sufficiency of reasons given by an administrative tribunal is summarised by Lord President Emslie in Wordie Property Co Ltd. It was clear from the adjudicator's decision that he did not accept the petitioner's evidence about her adultery. He gave his conclusion at paragraph 22 of his decision, and he tested the petitioner's evidence at paragraphs 17 and 19. The adjudicator clearly did not believe the petitioner's evidence about her adultery, and it cannot be said that no reasonable adjudicator could have reached this view. She referred me to Kulwinder Singh v Secretary of State for the Home Department 2000 S.C. 288, where Lord Reed observed (at 293) that"credibility is a question of fact... such questions have been entrusted by Parliament to the Tribunal of fact, in this case the special adjudicator, and it would be constitutionally improper for the court to interfere with that Tribunal's assessment except on Wednesbury grounds. It is also important, especially in a case such as the present, when the court has the same evidence before it, in the same form, as the special adjudicator to bear in mind that the special adjudicator has been specially appointed to hear asylum appeals and has the benefit of his own training and experience in dealing with asylum seekers from different societies and cultures: something of which a judge is unlikely to have any comparable experience."
"the decisions, and other authorities such as the UNHCR handbook, rightly, in our view, emphasised that credibility is an issue to be handled with great care and sensitivity, and that lack of credibility, on peripheral issues or even on material issues, is not to be made an easy excuse for dismissing a claim by an applicant who comes from a state or situation in which persecution is an established fact of life... It is, however, a matter of everyday experience that the credibility of witnesses can, and often must, be tested by examining what they say in regard to peripherals matters as well as central ones. The United Kingdom system of immigration control presupposes that the credibility of applicants has to be judged and, if a judgment is to be made, it is very difficult to see that it can be made without reference to the ordinary tests of consistency and inconsistency, always applied with due sensitivity."
Miss Carmichael submitted that the adjudicator in this case simply applied the ordinary tests with regard to credibility, and that he was entitled to reach the view which he did. His approach to the question of adultery, and his assessment of the credibility of the petitioner, cannot be challenged as unreasonable.
[13] With regard to the other two points raised in Miss Ross's submissions, namely failure to attend court and the removal of the children, these were not foreshadowed in the petition itself, nor in the grounds of appeal to the Tribunal. The failure to attend court arises from the petitioner's alleged adultery, and the point falls if the petitioner's evidence on the question of adultery is not accepted. Neither of these points were obvious points of law, so the Tribunal could not be criticised for failing to have regard to them even though they were not raised in the grounds of appeal. On the question of the removal of the children, the petitioner's submission failed to make the distinction between persecution and prosecution. This was an important distinction: it did not follow that just because the petitioner faced a prospect of prosecution for removing children from the custody of their father contrary to Iranian law that she had established a real risk of persecution or ill-treatment. [14] In reply, Miss Ross observed that the failure to attend court was closely linked to the court summons, which was raised in the grounds of appeal to the Tribunal and also in the petition. Moreover, even if the adjudicator cannot be criticised for his decision on the issue of adultery, there is the undisputed issue of the petitioner's sexual relations with another man, and the separate point that the court summons does not fall even if the petitioner has not committed adultery. Miss Ross accepted that there was nothing in the grounds of appeal to give notice of the point that she made about the removal of the children. With regard to the point about the adjudicator's treatment of the petitioner's credibility, his decision letter contained no more than a collection of various weaknesses on a number of peripheral issues, and did not meet the Wordie Property test.Decision
[15] I am satisfied that there is sufficient force in each of the arguments advanced on behalf of the petitioner that the Tribunal could not properly be satisfied that the appeal would have a real prospect of success. I consider that the petitioner has at least an arguable case. [16] The petitioner's attack on the adjudicator's approach to the adultery charge is closely linked to her attack on his general approach to assessment of her credibility. The adjudicator appears to have confined his approach on the consequences of the petitioner's sexual conduct to a technical assessment of what is required to prove adultery, and whether the petitioner's conduct fell within the 100 day period (see paragraphs 16 and 17 of the decision letter). He does not appear to have considered the wider issue of the petitioner's sexual relations with another man, together with her admission that these relations began before 3 September 2001. I accept that the adjudicator must assess the credibility of the petitioner under the ordinary tests of consistency and inconsistency, but he must apply these tests with due sensitivity and he must also explain what factors caused him to disbelieve the petitioner. In the present case I am not satisfied that the test set out by Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T. 348 is met - the reasons for his decision to disbelieve the petitioner and the material considerations which were taken into account in reaching that decision are not clear from the decision letter. The adjudicator had the benefit of hearing evidence from the petitioner and from each of her daughters. All three were subject to cross-examination. The daughters described their father as violent and abusive, and confirmed their mother's account of their departure from Iran. The adjudicator appears to have rejected the evidence of all three witnesses on the basis (at paragraph 19) that "the appellant's evidence that her former husband ceased troubling her mother because he did not wish her health to suffer does not square with her portrayal of him as a violent and vindictive individual", and he describes this as a weak point in her evidence. It does not seem to me to follow that because a man is not violent or vindictive towards his mother-in-law, he is not violent or vindictive towards his wife or ex-wife. [17] The adjudicator goes on to observe (at paragraph 20) that"the rapidity and ease with which Mehdi" (the male divorce caseworker) "allegedly entered and left the appellant's life, and her lack of concern over what has happened to him since, strongly suggests that either there was no such person or she was never involved with him in the way she claims. He slips in and out of the shadows much too easily."
The adjudicator does not give more detail as to why he reaches this view, or why this factor is material in his assessment of the petitioner's credibility. Against the background of the petitioner's evidence and that of her daughters, it does not appear to me that this aspect is particularly surprising. If it is to be a factor relied on in the determination of credibility, more explanation is required by the adjudicator as to why it is relevant and assists in the determination.
[18] With regard to the failure to attend court, the adjudicator had before him a summons and translation, and evidence from the petitioner and her two daughters. He had chosen to disbelieve all of this, apparently largely in reliance on the undated, unsigned letter from an entry clearance officer at the British Embassy in Tehran written in December 2000 which contains a speculative comment about another case. Again, if this is to be regarded as a material factor - perhaps the only material factor - in rejecting this aspect of the petitioner's evidence, I consider that more explanation of the adjudicator's reasoning is required. No contradictory evidence was led on behalf of the respondent to indicate that this particular summons was false, nor that the petitioner did not face the risk of ill-treatment or persecution for her non-attendance if she was returned to Iran. Even if the adjudicator did not accept the petitioner's position on adultery or sexual relations with another man, it does not follow that this summons, and the consequences of failure to answer it, falls to be disregarded. If the only reason for disregarding this aspect of the petitioner's case is the letter of 4 December 2000, I consider that no reasonable adjudicator could have reached this view. If there were other reasons or factors which the adjudicator took into account, these should have been specified in accordance with the test in Wordie Property. [19] The petitioner's position with regard to the removal of the children is more difficult for her, because it is accepted that there is no reference to this argument in the grounds of appeal nor in the petition. However, the issue of the removal of the children was clearly canvassed in the course of the petitioner's evidence before the adjudicator, and was dealt with in her statement and in the report by Dr Rashidian. The adjudicator at paragraph 14 of his decision letter identifies this as one of the three points on which the petitioner's case depends on proving a real risk of persecution or ill-treatment. Having identified the importance of this matter, the adjudicator then fails to address it at all in his reasoning or conclusions in his decision letter. Either he was wrong to identify this as a matter on which the petitioner's case depended, or he was wrong to fail to consider it. This is such an obvious point of law that I consider that the petitioner was entitled to found on it when making submissions to the court. It is something which the Immigration Appeal Tribunal ought arguably to have had regard to, even though it was not raised in the grounds of appeal. [20] For these reasons I consider that the Immigration Appeal Tribunal erred in law in refusing leave to appeal. In any event, I am satisfied that the adjudicator erred in failing to give adequate reasons for his decision, and that this error was one which any reasonable chairman of the Immigration Appeal Tribunal, properly considering the application for leave to appeal, would have recognised as affording an arguable ground of appeal. Accordingly I shall grant decree of reduction of the decision of the Immigration Appeal Tribunal dated 4 August 2003 refusing the petitioner leave to appeal to the Immigration Appeal Tribunal.