Scottish Court of Session Decisions

"Grounds of Appeal

7. The grounds of appeal and statement of additional grounds are in general terms and do not address the issues raised in the Reasons for Refusal Letter. The appellant relies upon articles 2, 3, 5 and 6 of the European Convention on Human Rights. Credibility is raised as an issue in the reasons for Refusal Letter of 15 May 2001 (sic).

8. At the hearing the appellant's representative accepted that the appellant had not given evidence of past persecution. His fear of future persecution was based upon his support for the Mujahadin. The appellant's representative therefore restricted the appellant's claim to articles 3, 5, 6, 7 and 14 of the European Convention on Human Rights although the skeleton argument refers to article 3 only. The appellant's representative relied strongly upon the case of Jafari (01TH10524), (see para 22) and the likelihood that the authorities would impute political opinion from involvement with the Mujahidin."

"16. At the asylum interview the appellant said that he had been a supporter of the Mujahadin for 4 years. The organisation wanted to make their cars more resistant and strong. The cars would look ordinary from the outside but technically they would be different. He contacted the person from the Mujahadin and three of them began to work in a workshop that the organisation had rented. The appellant was in charge of the front chassis and wheels and the resistance of the body. The others were in charge of the engine and the system. One of the team leaders told that one of the members of the group of three had been detained for questioning and there was no news of him. Through the team leader they were ordered to close the premises and leave. The appellant felt that they would come after the rest of the team since the team member may have disclosed their names. The appellant felt that there was no security for him so he left. He has family and relatives in the United Kingdom and feels safe here.

17. In his witness statement he added that he arrived in a container on 28 March 2001 and made his way to Glasgow. He lost his last passport in Turkey. He was a supporter of the Mujahadin as they were democratic and want free elections. In the last twenty years the government of Iran had killed intellectuals and executed thousands of Mujahadin without trial. On return to Iran he would face very severe treatment if the connection between himself and the Mujahadin was disclosed. He could not move to another part of Iran as people would question why a person from Tehran was in their area.

18. In his evidence at the hearing the appellant added that the work that he did for the Mujahadin was in connection with his business. He was self-employed and did not work solely for the Mujahadin. He was in Turkey, where he went to travel and obtain information that he could not obtain in Iran, when he met a person in the post office. The appellant suggested that he could do some work for the Mujahadin in a garage that they had. About 2 months after his return he was contacted. If they had not contacted him, he would just have continued with his work. The appellant did not join the Mujahadin he supported them. He supported himself financially on the salary that he received from his job. He gave the Mujahadin a special discount for the work that he did for them. He could not work solely for the Mujahadin as this may have given rise to suspicion. He had to accept work from other customers in that garage. His job was to re-inforce cars. He had produced his qualifications to Home Office. In Iran his job was called metalwork of a car, but he was only qualified to deal with the suspension and steering. In Iran these parts were changed and re-inforced rather than replaced. His job did not exist in the United Kingdom. In Iran because it was expensive to get parts for cars people tended to repair rather than replace them. This was a procedure which was commonly done to cars in Iran. The incident leading to his departure from Iran took place about 1 month before his departure. When they found the co-worker did not turn up the garage closed down. The appellant went into hiding in his own house and the houses of relatives in Tehran. He had no problems with the authorities during that period. He funded his travel to the United Kingdom with money that he had retained from the sale of land. On arrival in the United Kingdom his cousin sent him some money and he travelled by train to Glasgow as he was not feeling well. He could not remember how many days he was in Glasgow before he claimed asylum. Any discrepancy in the dates was due to his confusion and nervousness. There are checkpoints at the roads and stations near the border in Iran where they check for people who have been forbidden to leave the country and for narcotics and drugs. The appellant did not have any problem leaving the country. He travelled to a town near the border with Turkey and then to the mountain area in Turkey and from a city there he travelled by lorry. He lost his passport on the journey through Turkey. He could not explain why he had said that he had left it in Iran when he completed the screening questionnaire. On return to Iran he feared imprisonment and execution."

"Asylum and the 1951 Convention

Decision

34. Given my findings as set out above, I find that the appellant has failed to discharge the low burden of proof upon him to show that there is something in his individual history in Iran which exposes him to a real risk of persecution for a 1951 Refugee Convention reason on return there. I find that the appellant's removal would not cause the United Kingdom to be in breach of its obligations under the 1951 Refugee Convention.

Human Rights - European Convention

35. The appellant's representative has submitted that the appellant's rights under Article 3 of the European Convention on Human Rights are engaged. I have considered whether the appellant's claim engages such rights. I find on the facts established, as set out above, that it does not.

Decision

36. I find therefore that if the appellant is now returned to his country of nationality, there is no real risk that he will suffer a breach of his protected rights in terms of the European Convention on Human Rights and that the decision appealed against would not cause the United Kingdom to be in breach of the law or its obligation under the European Convention on Human Rights.

Summary of Decision

37. I dismiss the appeal under the 1951 Refugee Convention.

38. I dismiss the appeal under the European Convention on Human Rights."

"In noting at paragraph 8 of her determination that the applicant's representative accepted that the applicant had no given evidence of past persecution, the Adjudicator did no more than record that fact and there is no indication that she regarded this in any sense as a condition precedent to recognition of refugee status. She considered the evidence, both subjective and objective carefully, and came to clear and soundly based conclusions. Her adverse credibility finding was based on a careful assessment of the evidence, and the Tribunal considers it is not reasonably susceptible to challenge as alleged or at all.

In the light of her findings it is not reasonably arguable that a person with the applicant's history would face a well-founded fear of persecution on return to Iran. She was right to distinguish Jafari as she did and, although she did not specifically refer to Hadani in her conclusions, the history there was clearly distinguishable.

Leave to appeal is refused."

"The appellant's representative therefore restricted the appellant's claim to Articles 3, 5, 6, 7 and 14 of the European Convention on Human Rights, although the skeleton argument refers to Article 3 only."

Mr. Govier submitted that the only proper interpretation of the paragraph was that the adjudicator had concluded that the appeal under the Refugee Convention had been abandoned and was accordingly based solely on Human Rights Convention grounds. The appeal under the Refugee Convention had not in fact been abandoned. Although there were subsequent references to the asylum claim in the determination and reasons, the decision was confused, and the adjudicator had failed to approach the claim under the Refugee Convention with the requisite care.

"The appellant's representative invited me to find the appellant credible and uphold the claim on Refugee Convention and Human Rights Convention grounds."

In paragraph 30 she says that she found the petitioner's account inconsistent with a well-founded fear of persecution, and distinguished the case of Jafari which is an asylum case. In paragraph 33 she rejects the contention that there was a risk that the petitioner would suffer ill treatment amounting to persecution on return to Iran. In paragraph 34 she specifically rejects the petitioner's claim under the Refugee Convention. The argument that she treated it as abandoned does not therefore bear examination.

"12. In cases where the parties are legally represented, it seems to me that it is not incumbent on the Tribunal, as I say, to analyse all the material to see whether there is some issue of fact which has not been taken on behalf of the applicant for asylum, and which could have been. On the other hand, if one is readily discernible, that is to say obvious in that sense on reading the material, it is one which the Immigration Appeal Tribunal should bear in mind and take into account in making its decision provided it is one which if taken would have a strong prospect of persuading the Tribunal to grant leave to appeal."

The same applies mutatis mutandis to the judge in an application for judicial review of the tribunal's decision.

"While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering, para. 91; Cruz Varas, para. 69; Vilvarajah, para. 103. In Dehwari, para. 61 ... the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a 'near-certainty'. Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state: Soering, para. 113; Drodz, para. 110; Einhorn, para. 32; Razaghi v Sweden; Tomic v United Kingdom. Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on Articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes."

Lord Steyn, at paragraph 50, said:

"It will be apparent from the review of Strasbourg jurisprudence that, where other articles may become engaged, a high threshold test will always have to be satisfied. It will be necessary to establish at least a real risk of a flagrant violation of the very essence of the right before other articles could become engaged."