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Gholami, Re A Petition for Judicial Review [2005] ScotCS CSOH_29 (18 February 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 29

P1291/03

OPINION OF LADY PATON

in the petition of

AMIRSHAHIN GHOLAMI

Petitioner;

for

Judicial Review of the decisions of an adjudicator and of the Immigration Appeal Tribunal in relation to appeals under Sections 65 and 69 of the Immigration and Asylum Act 1999

________________

Petitioner: Govier; Wilson Terris, S.S.C.

Respondent: Drummond; HF Macdiarmid

18 February 2005

Application for asylum
[1] The petitioner was born on 24 January 1968. He is a citizen of Iran. In May 2000 he entered the United Kingdom as an illegal immigrant. He applied for asylum.

[2] The petitioner was interviewed at Gatwick on 9 May 2000 with the assistance of an interpreter. During that interview he explained that he had never suffered any difficulties, persecution or harassment from the authorities in Iran. His description of the incident which caused him to leave Iran was noted in the interview record (7/4) at pages A4 to A5 as follows:

"On 7.7.99 the students held a demonstration against the government and on 8.7.99 the demonstration carried on and where I was working in the shop it was in front of where the demonstration took place. The fighting started between the students and intelligence agents, who were all armed. I was on the roof of my shop watching the struggle and I saw 3 of the students run into my shop to hide. Then the intelligence agents came into the shop to look for these 3 and started to struggle with my father. They started beating my father up. Then myself and my brother tried to separate the officials from my father and they were very strong - we couldn't do anything. My father and I have a jewellery shop and workshop making gold jewellery. I hit one of the intelligence agents with a metal bar used to hold rings. Then I and my two brothers escaped from the shop, with my father ...".

[3] The petitioner went on to explain that he collected his wife and children from home, and ultimately left Tehran to stay in Isfahan. An agent subsequently helped him and his family move to Turkey. After some months in Turkey, Bosnia and Slovenia, they finally arrived in the United Kingdom.

[4] The petitioner confirmed during interview that he was not a member of any political party. He had not been taking part in the demonstration. He did not know the three students. In relation to the intelligence agent whom he had hit, he commented at page A5 of the interview record: "... I think he didn't survive, because I hit him on the head". On the same page the petitioner was noted as explaining that he had run away to Isfahan "because otherwise [he] would be arrested". Further, in Box 3 of Annex 7 of the interview record (page A7), the petitioner was recorded as answering the question "Have you any outstanding charges against you?" with the words "They were after me because I hit the intelligence agent."

[5] By letter dated 21 June 2000, the Secretary of State advised that he was not satisfied that the petitioner had established a well-founded fear of persecution, and refused to grant asylum. The petitioner appealed. On 28 March 2003 an appeal hearing took place before an adjudicator. The petitioner was present at the hearing. He was represented. He gave evidence. The adjudicator also had the interview record (7/4), the refusal letter (7/5), and a written statement from the petitioner (7/7).

[6] The written statement contained the following information:

"... 4. We didn't have any particular problems with the government until this incident in July 1999. The Ayatollah Khameni had stated through the media that anyone found harbouring or helping students who were involved in the protests against the government would be subjected to Mofsed-Al-Fel-Arz. Anyone [who did so] would be considered a traitor which carries an instant death sentence ...

... 5. [In July] there were crowds everywhere. I was on the roof of the building watching what was happening. The police had shouted at us to move off the roof and then a tear gas bomb was thrown onto the roof to disperse those of us there. I had just noticed that 3 students had run into the shopping mall off the street to get away from the police. When the gas bomb was thrown, I ran back to the shop. The 3 students had run into our shop and were asking for my father to hide them. The police broke into the stairway and we could hear them coming to the shop door. When we heard them in the stairwell, my father locked the door. They approached the door and started banging on it for us to open it. The students were hurried out the back. My father opened the door and there were 2 guards who pushed past him into the shop. Everyone was anxious. The guards were shouting at my father. We all started to panic. Suddenly, one of the guards grabbed at me. My father panicked and shouted at them to leave me alone. One of the guards then hit my father. He punched my father and started to hit him. I panicked. I lifted a heavy metal tool which we used for measuring and hit one of the guards on the back of the head/neck to make him leave my father alone.

6. The guard fell to the floor and was unconscious. The other guard ran from the shop to go and get help ...

7 ... we reached home. We gathered our belongings together and escaped. We knew that the police would soon be after us as it would take no time at all to get our details from the business.

8 ... The next day, our relatives told us that the police had already been to the shop and had closed it. My cousin knew the staff who worked at the shop. When he went to the shopping area, he found the security people talking to the staff. My cousin found out that one of the workers, who was gay, had told the police that I had actually raped him. I had had a row with him some days before as I had caught him stealing. He was only 16 years old and was the shop cleaner and tea boy. This was his form of revenge ...

9. My father decided that we should leave the country. He knew, as did I, that if we were caught, we would be immediately taken and executed.

10 ... After we left the country, warrants were issued against us. My cousin managed to obtain these as they had been posted in the shopping area. These warrants which have been produced show that I was tried and convicted in absence. They state that we assisted in the demonstrations...

11. My brother Abbas was taken about 3 months after we left the country. He was detained for about 3 months and then released. He couldn't give them any information about our whereabouts and they released him ...

12 ... The agent had told us that he was taking us to Canada but this turned out to be [un]true ...".

[7] In a determination promulgated on 16 April 2003 (6/1) the adjudicator dismissed the petitioner's appeal. The petitioner sought leave to appeal to the Immigration Appeal Tribunal (IAT). On 5 June 2003 the Vice President of the IAT considered the papers including the Grounds of Appeal, and refused leave to appeal. The Vice President noted inter alia that:

"... the adjudicator gave full consideration to each and every aspect of the claimant's account. [She] found inconsistencies in the various accounts including the oral evidence. The tribunal is of the view that the inconsistencies were material and went to the core of the claimant's claim. Therefore the adjudicator was entitled to make the findings that [she] did ...".

[8] On 27 August 2003 the petitioner lodged the present petition for judicial review in the Court of Session.

Determination of the adjudicator
[9] The adjudicator in her determination promulgated on 16 April 2003 noted that the petitioner was represented by counsel. Oral evidence was heard from the petitioner, and oral submissions from both representatives. Documents placed before the adjudicator included the asylum interview record, a typed statement by the petitioner, arrest warrants with certified copy translations, reports about Iran (for example, from Amnesty and the Country Information and Policy Unit), and another adjudicator's determination in the case of the petitioner's father Hassan Gholami (HX/52298/2002).

[10] In paragraphs 12 to 14 of the determination relating to the petitioner, under the heading "The Appellant's Claim", the adjudicator summarised the information available from the interview record, the petitioner's written statement, and his oral evidence.

[11] In paragraph 18 of the determination, under the heading "The background material", the adjudicator noted the situation in Iran, including the following:

" ... By law the death penalty can be carried out for offences including murder, rape and homosexual intercourse ...

On July 8 1999, students at the University of Tehran who were protesting proposed legislation were attacked by elements of the security forces. The demonstrations continued to grow in subsequent days to include many non-students. Looting and vandalism and large scale rioting began. In September 1999 the head of Tehran Revolutionary Court Hojatoleslam Gholamhosseim Rahbarpour was quoted as saying that 1,500 students were arrested during the riots, 500 were released immediately after questioning, 800 were released later and formal investigations were undertaken against the remaining 200."

[12] In paragraphs 19 to 23, under the heading "My Findings of Credibility and Fact", the adjudicator recorded that she "did not find the [petitioner] to be a credible or reliable witness". She thereafter listed aspects of the petitioner's account, sourced from the interview, the written statement, and his oral evidence, which she found undermined his credibility.

[13] In paragraph 26, the adjudicator concluded: "I have not accepted the [petitioner's] account of what he states occurred prior to his leaving the country".

[14] In paragraph 28, under the heading "Decision on Asylum Appeal", the adjudicator stated: "Given these conclusions I find that the [petitioner] has not discharged the burden of proof of having a well-founded fear of persecution for a Convention reason ...".

Submissions on behalf of the petitioner
[15] Mr Govier, on behalf of the petitioner, invited the court to find first, that the adjudicator failed to consider all the evidence which was before her. Secondly, esto she had considered all the evidence, she failed to make clear what weight she placed on the core of the petitioner's case. Thirdly, the adjudicator failed to provide reasons for her findings which would pass the Wednesbury reasonableness test.

[16] Counsel referred to the definition of "refugee" in Macdonald, Immigration Law and Practice (5^th ed.) paragraph 12-20. He acknowledged the requirement for the petitioner to establish objectively whether there was a "reasonable degree of likelihood that he [would] be persecuted for a Convention reason if he returned to his own country": R. v Secretary of State for the Home Department ex parte Sivakumaran [1988] 1 A.C. 958. Counsel then addressed the assessment of credibility in asylum cases, with reference to Professor Hathaway, The Law of Refugee Status (1991) at page 84 et seq.; Ernesto Mendes, a decision of the IAT No.12183, 6 June 1995 (the conclusions); Chinder Singh v Secretary of State for the Home Department, 9 September 1997 (Lord Kingarth) 1997 G.W.D. 34-1738, in particular his observations about finding inferences favourable to the petitioner from such consistencies as there were in the material, and also being alert to the fact that the nuances of another language may be lost in translation. Counsel also referred to Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449.

[17] Turning to the determination, counsel submitted that the adjudicator's approach to credibility was flawed. The adjudicator pointed to small discrepancies relating to the tear-gas episode and the type of official who came to the shop; the implausibility of the petitioner having walked around for over four hours carrying gold and jewellery, then reaching home without encountering security forces; the inconsistency between an account of homosexuality as contrasted with an account of rape; unsatisfactory features relating to the warrants; discrepancies between the petitioner's account and the petitioner's father's account; and the petitioner's belief that he was going to be taken to Canada (thus apparently choosing the country in which he would make an asylum claim).

[18] Counsel first criticised the general approach adopted by the adjudicator. His criticism was summarised in paragraph 7 of the petition as follows:

"... the determination of the adjudicator was unlawful and unreasonable. She failed to examine the petitioner's claim for asylum in the correct fashion. As subsequently averred, she made a number of findings on discrete points in the evidence before her. In each of these points, she made an adverse finding on his credibility. She ignored, or appeared to ignore, other evidence adduced by the petitioner. She made no reference to the evidence given by the petitioner on the core of his case, being the events which took place in his father's shop on 7 July 1999. She made no reference to any evidence before her which afforded consistency to the petitioner's story. In particular, she made no reference to evidence in the determination in his father's appeal which was consistent with, and corroborative of, that story. She failed to make any overall assessment of the petitioner's claim for asylum. The adjudicator has accordingly failed to take into account matters relevant to the petitioner's claim and has therefore erred in law and acted unreasonably. Her determination should be reduced. Reference is made to Karanakaran v SSHD [2000] 3 All ER 449, Sattar v SSHD, 2002 S.L.T. 1397 and Chinder Singh (9 September 1997 - Lord Kingarth, unreported)."

[19] Elaborating further on paragraph 7 of the petition, counsel submitted that the adjudicator had made no findings about the incident in the shop, such as whether the incident had taken place, the implications of the incident, and whether the incident would be significant in the assessment of the petitioner's appeal. Yet the incident was the core of the case. The adjudicator not only had the evidence of the petitioner about the incident, but she also had the petitioner's father's account of events. Counsel submitted that the core of the petitioner's case was consistent and was corroborated by the father's account. Counsel accepted that the adjudicator recorded a conclusion in paragraph 26 of her determination (namely "I have not accepted the appellant's account of what he states occurred prior to his leaving the country"), but submitted that she offered no reasons for not accepting the core of the petitioner's story. If by her conclusion in paragraph 26 the adjudicator meant that she found that the core incident had not taken place, she had given no reason for so finding. Counsel conceded that it was possible that paragraph 26 might mean that the adjudicator had been unable to accept the petitioner's account as an accurate version, but such a construction simply underscored the unsatisfactory nature of the conclusion in paragraph 26.

[20] Counsel referred to Chinder Singh, 9 September 1997 (Lord Kingarth) 1997 G.W.D. 34-1738, and emphasised that an adjudicator had a duty to take account of consistencies. Yet in the present case, no findings-in-fact had been made about core matters. No findings had been made about anything which the adjudicator did believe. While the observations of Lord Penrose at pages 894H-I of Asif v Secretary of State for the Home Department, 1999 S.L.T. 890 were accepted, it was submitted that where the core of the case had been ignored (notwithstanding consistencies which could be found in other evidence), such an approach took the instant case outwith the generality of cases. The dicta of Lord Penrose had been approved in the Inner House in Daljit Singh v Secretary of State for the Home Department, 2000 S.C. 219, at page 223B. But it was important to remember that there had been no question of credibility in Singh as the appellant had failed to attend and had not given evidence (page 221H). Also at page 222 the Inner House accepted that there would be situations where matters would have to be spelt out: in particular, the characterisation of evidence as accepted, rejected, and so on.

[21] Counsel concluded the submissions summarised in paragraph 7 of the petition by reiterating that the adjudicator had failed to consider all the evidence which was before her. Esto she had considered it, she failed to make clear what weight she placed on the evidence which constituted the core of the petitioner's case.

[22] Counsel then turned to criticise the discrete points underlying the adjudicator's conclusion on credibility (paragraph 8 of the petition). The tear gas point was a peripheral matter, as was the precise identity of the officials who came to the shop. It had to be remembered that the petitioner's words were translated by an interpreter. It was possible that there might be nuances lost in translation. There was no foundation for a suggestion that walking around for several hours after the incident in the shop, carrying gold and jewellery, without encountering difficulties from security forces, was implausible. There were no inconsistencies or incredible features arising from the information about homosexuality and/or rape. The warrants raised a question-mark as to their precise purpose, but did not justify a doubt about the petitioner's credibility. The fact that the petitioner had not mentioned torture of a brother, whereas his father had, did not support an attack on the petitioner's credibility. Finally the fact that the petitioner had been under the impression that he was going to Canada had no relevance when assessing his credibility.

[23] Summarising that part of his argument, counsel submitted that the adjudicator had failed to provide reasons for making such findings as she had made which would pass the Wednesbury reasonableness test.

[24] In conclusion, on the basis of any or all of the above submissions, the decision of the adjudicator should be held to be unlawful and unreasonable. The submissions were based on an analysis of the adjudicator's determination which should have been obvious to any IAT, properly advised, when considering the application for leave to appeal. Counsel then referred to the petitioner's Grounds of Appeal, advising that the majority of his arguments had been flagged up in those Grounds, but that he no longer insisted upon paragraph 4. Counsel challenged the IAT's conclusion that the adjudicator had given "full consideration to each and every aspect of the claimant's account" and that "the inconsistencies were material and went to the core of the claimant's claim".

[25] In conclusion, counsel submitted that the IAT's refusal of leave to appeal was in itself unreasonable in that it failed to take into account the well-founded Grounds of Appeal. Counsel invited the court to sustain the petitioner's plea-in-law and to reduce the IAT's determination refusing leave to appeal.

Submissions on behalf of the respondent
[26] Counsel for the respondent invited the court to repel the petitioner's plea-in-law and to sustain the respondent's second plea-in-law.

[27] The issue for the court was whether the refusal of leave to appeal was unlawful. The focus should be on the Grounds of Appeal, although it was accepted that if an obvious point with strong prospects of success cried out for a response, such a point should be taken into account even if not specifically mentioned in the Grounds of Appeal: R. v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929, at pages 945G to 946D.

[28] In the present case, four matters argued by the petitioner's counsel in the judicial review hearing were not reflected in the Grounds of Appeal. Those four matters were: what was complained of in paragraph 7 of the petition (set out in paragraph [18] above), and three of the discrete matters complained of in paragraph 8 of the petition and said to have undermined the petitioner's credibility, namely the assumptions said to have been made by the adjudicator in relation to the operational efficiency of the Iranian authorities (hence the petitioner managing to reach home without encountering problems from officials); the reliance placed by the adjudicator on a discrepancy namely that the petitioner had made no mention of his brother being tortured, whereas his father had; and finally the suggestion, made for the first time at the end of paragraph 8 of the petition, that there may have been difficulties in translation.

[29] Counsel submitted that none of the arguments presented by the petitioner satisfied the exacting test set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[30] In response to the argument contained in paragraph 7 of the petition, counsel submitted that, far from ignoring the evidence about core events such as the riot and the incident in the shop, the adjudicator carefully set out that evidence in paragraphs 12 to 14 of her determination. Those paragraphs constituted a summary of the petitioner's interview record, his written statement, and his oral evidence. In paragraph 18 the adjudicator recorded background material, describing the student demonstration. Then in paragraphs 19 to 23 the adjudicator set out her findings of credibility and fact. She highlighted the difficulties which she found with the petitioner's account. She did not set out every piece of evidence, nor did she did set out every consistency between the father's account and the petitioner's account. She was under no obligation to do so: Asif v Secretary of State for the Home Department, cit. sup. approved in the Inner House in Daljit Singh v Secretary of State for the Home Department, cit. sup. In paragraph 10 of her determination, the adjudicator expressly noted that "great care must be taken before making adverse findings of credibility in asylum cases". Ultimately, in paragraph 26, for all the reasons given, she concluded that she did not accept the petitioner's account of what occurred prior to his leaving the country. Her final position was therefore that she rejected the petitioner's evidence, and she gave reasons why she did so. Once an adverse finding on the question of credibility had been reached, that was the end of the matter. Any questions of standard of proof (dealt with in Karanakaran and other authorities) flew off: Kingori v Secretary of State for the Home Department [1994] Imm. A.R. 539, at page 544 et seq.
[31] Credibility was a question of fact, for the adjudicator. It was perfectly proper for the adjudicator to test the petitioner's credibility as she had done: Asif, cit. sup. at pages 188G to 189D; Kulwinder Singh v Secretary of State for the Home Department, 2000 S.C. 288, Lord Reed at page 293F et seq. The proper approach was whether the finding on credibility was so unreasonable that no reasonable adjudicator properly addressing herself to the facts and law could have made such a finding. Parliament had entrusted questions of fact to adjudicators, and courts should be reluctant to interfere. When someone's credibility had to be assessed, the evidence which he gave or answers which he provided in interview had to be looked at as a whole. Inconsistencies or incredible comments made in some parts of his account might cast doubt upon his credibility as a whole: R. v IAT ex parte Chen Liu Guang [2000] Imm. A.R. 59.

[32] Counsel for the petitioner had referred to Professor Hathaway, but the passage at page 84 commenced with a reference to a presumption (relating to taking an oath to tell the truth) which had no place in United Kingdom law. The passage should therefore be treated with a degree of caution.

[33] Having made the adverse finding on credibility, the adjudicator did not have to go any further. However she had done so. In paragraph 27, the adjudicator proceeded to consider, on an esto basis, the position if she were to accept the petitioner's account as credible. She summarised that position as "prosecution rather than persecution". The petitioner had not challenged paragraph 27. Accordingly, even if the adjudicator had reached some Wednesbury unreasonable view on credibility, the adjudicator's conclusion as set out in paragraph 27 still stood. There was no error connected with that paragraph which was obvious in the sense used in Robinson, cit. sup. Such an error had to be a material error giving rise to an appeal with a real prospect of success. An error which was de minimis would have no effect: Hanif v Secretary of State for the Home Department, 1999 S.C. 337, at page 344I.

[34] Turning to the petitioner's attack on the discrete points which were held to undermine the petitioner's credibility, counsel for the respondent submitted that the adjudicator was entitled to regard each point as significant, and the points cumulatively as having the effect of undermining credibility. It was not obvious to the IAT that the discrepancies and unsatisfactory features relied upon must have arisen through translation errors. That had never been suggested in the Grounds of Appeal. The adjudicator was peculiarly well-placed to make an assessment of credibility, having seen and heard the petitioner give evidence. Her decision on credibility was within the reasonable range of decisions open to her. It was reasonable when assessing credibility for the adjudicator to take account of inconsistencies; doubts about the warrants (which did not in fact demonstrate what the petitioner said they would); discrepancies between the petitioner's account and his father's account; and also the fact that the petitioner thought that he had been destined for Canada. In connection with that latter matter, it was notable that the petitioner had not sought asylum in Turkey, Bosnia or Slovenia. It appeared that he had chosen to travel to Canada, but had been let down by his agent. That was not consistent with a refugee fleeing and seeking asylum in the first available Convention country. Accordingly, there had been ample material before the adjudicator upon which she could reach her conclusion on credibility.

[35] Counsel concluded by submitting that the adjudicator's findings were proper and reasonable in the Wednesbury sense. In any event, paragraph 27 of her determination remained unchallenged. There was ample material demonstrating that the petitioner faced prosecution, not persecution, on his return to Iran. The petitioner's plea-in-law should be repelled, the respondent's second plea-in-law sustained, and the petition dismissed.

Opinion
[36] The first two arguments presented by counsel for the petitioner and outlined in paragraph 7 of the petition were not included in the petitioner's Grounds of Appeal. They were not therefore brought to the attention of the IAT. Nevertheless it is necessary to bear in mind the guidance given in R. v Secretary of State for the Home Department ex parte Robinson [1998] Ch. 929, and to consider whether those arguments relate to an error or errors which were readily discernible and obvious, and whether those arguments, if pursued before the IAT, would have had strong prospects of success and would have made all the difference to the appeal.

[37] In my view, no such errors can be identified, nor can the arguments be said to have had strong prospects of success. The adjudicator in her determination accurately summarised the petitioner's claim, including his description of what took place in his father's shop. She further recorded background material about the student riot, consistent with the petitioner's claim. She referred to the determination in the petitioner's father's appeal, thus clearly taking it into account. Having set out the petitioner's account and other evidence, the adjudicator was under no obligation to "carry through a mechanical process of narration of the evidence, analysis of it into classes, and explanation factor by factor of the relevance, or irrelevance, credibility and reliability or otherwise of it". Lord Penrose at page 894G-H of Asif v Secretary of State for the Home Department, 1999 S.L.T. 890, approved in the Inner House in Daljit Singh v Secretary of State for the Home Department, 2000 S.C. 219.

[38] The adjudicator was entitled to make an assessment of the petitioner's credibility before proceeding any further. She did so, in paragraphs 19 et seq. Ultimately, for the reasons which she gave, she made a finding adverse to the petitioner. The approach to credibility is dealt with further in paragraph [41] et seq. below, in response to the petitioner's third argument.

[39] In those circumstances, I am unable to accept that the adjudicator failed to examine the petitioner's claim in the correct fashion, and that she failed to take into account all the evidence which was before her. Nor can I accept the petitioner's secondary argument that esto the adjudicator considered all the evidence, she failed to indicate what weight she placed on the core of the petitioner's case. In my view, it is quite clear from her determination that the adjudicator considered all the evidence, made an adverse finding relating to the credibility of the petitioner for the reasons which she gave, and as a result placed no weight on the petitioner's account, including his account of the core of his case.

[40] The petitioner's third argument, outlined in paragraph 8 of the petition, was in general reflected in the Grounds of Appeal placed before the IAT. However three points had not been included in the Grounds of Appeal, namely the assumptions said to have been made by the adjudicator about the operational efficiency of the Iranian authorities; the reliance placed by the adjudicator on a discrepancy namely that the petitioner had made no mention of his brother being tortured, whereas his father had; and finally the suggestion (made for the first time at the end of paragraph 8 of the petition) that there may have been difficulties in translation. Those three discrete points would not in my view satisfy the Robinson test referred to in paragraph [36] above. Accordingly, the IAT's refusal of leave to appeal cannot be criticised so far as those points are concerned. The remaining points, which were contained in the Grounds of Appeal, challenged the adjudicator's approach to credibility. It was said that the adjudicator acted unreasonably and unlawfully in finding certain aspects of the petitioner's account to be incredible.

[41] In considering that argument, I refer to Kulwinder Singh v Secretary of State for the Home Department, 2000 S.C. 288, where Lord Reed noted at page 293F-H that:

"... a special adjudicator must be careful before rejecting an asylum-seeker's account as incredible, given that the decision under appeal is said to be one which may put the appellant's life at risk, and given also the cultural, linguistic and other difficulties (including those described in para 198 of the UN Handbook) which may affect a genuine asylum-seeker. Nevertheless I must also bear in mind that credibility is a question of fact (cf. R v Secretary of State for the Home Department, ex parte Agbonmenio). 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. As Sir Thomas Bingham MR (as he then was) observed in Sahota v Immigration Appeal Tribunal at page 506: The present field is one in which it is tempting for the court to stray into taking its own view of the facts. That is a temptation which the court must resist. A court's function is limited to a review of the challenged decision on one or more of the familiar grounds ...".

[42] I respectfully agree. In the present case I am unable to conclude that the adjudicator's view about the petitioner's credibility, and the reasons leading to that view, were so unreasonable as to satisfy the test in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Accordingly, I reject the petitioner's criticisms of the adjudicator's adverse conclusion on credibility.

[43] Finally, the adjudicator noted in paragraph 27 of her determination: "Even if I had accepted the appellant's account as credible, as he assaulted an intelligence agent he would face prosecution rather than persecution on his return."

[44] That paragraph was not challenged by counsel for the petitioner, nor in my view could it be. From the account given by the petitioner (noted in paragraphs [2] and [6] above), applying the tests and standards advocated in Karanakaran v Secretary of State for the Home Department, cit. sup. and other authorities, the petitioner's own account of what happened fails to establish that "owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he 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". There is nothing in the petitioner's account to suggest that, as a result of the incident in his father's shop, the authorities ever became aware that the petitioner or his father had harboured or helped students (thus introducing a possible political element into what appeared to have been a previously politics-free existence). On the contrary, on the petitioner's own account, the officials did not in fact find any students in the shop, nor did they find any evidence that students had been harboured or helped. What is clear from the petitioner's own account is that the authorities became aware that the petitioner was alleged to have carried out a very serious assault namely striking an official on the head with a metal bar, leaving him lying unconscious, and possibly, on the petitioner's own account, dying.

[45] If, in addition to the petitioner's own account, other sources of evidence were to be consulted as cross-checks, those other sources tend to confirm that the petitioner was fleeing to avoid being arrested in respect of the assault. For example, at paragraph 9 of the determination in the father's asylum appeal, the father's account was noted as follows:

"... The appellant's son [the petitioner] hit one of the officers with a metal ring sizer and knocked him unconscious. While the other officer was tending to his colleague, the appellant escaped through the back of the shop with jewellery and gold. He and his sons went straight home and picked up his wife and children and went to stay at a friend's house. The appellant phoned his nephew who worked in the shop to tell him where he was. His nephew later advised that the police were looking for the appellant's address. The appellant knew that he and his son would be sentenced to death as they had injured one of the officers [italics added] ...".

[46] Further, the warrants cannot assist the petitioner. The petitioner asserted in paragraph 10 of his written statement (7/7) that: "... These warrants which have been produced show that I was tried and convicted in absence. They state that we assisted in the demonstrations." However when the warrants were examined, it was not possible to ascertain in respect of what alleged offence they had been issued. The warrants did not show that the authorities in Iran considered that the petitioner had been involved in the student riot, or in any political role such that he had attracted their attention in the manner envisaged in the Convention.

[47] In my view therefore the adjudicator was well entitled to reach the view she did in paragraph 27 of her determination.

Conclusion
[48] For the reasons given above, it is my view that the adjudicator did not err in any of the ways outlined in the Grounds of Appeal, or as argued at the first hearing of the judicial review. Nor was there, in the material before the IAT, a readily discernible and obvious point in favour of the petitioner, having a strong likelihood of success: cf. R. v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929. I am not therefore persuaded that the IAT erred in refusing leave to appeal.

[49] I shall accordingly repel the petitioner's plea-in-law, sustain the respondent's second plea-in-law, and dismiss the petition.