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OUTER
HOUSE, COURT OF SESSION
[2007] CSOH 18
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OPINION OF J GORDON REID, QC
(Sitting as a Temporary Judge)
in the Petition
ANDREI HARBACHOU
Petitioner;
for Judicial Review of a Decision of the
Secretary of State for the Home Department
Respondent;
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Devlin;
Drummond Miller, W.S.
Respondent: Stewart;
H. Macdiarmid
2 February 2007
Introduction
[1] The
Petitioner seeks judicial review of a decision made on behalf of the Secretary
of State for the Home Department, refusing an application for asylum and
refusing to treat the Petitioner's submissions as a fresh claim within Rule 353 of the Immigration Rules (HC 395) (as
amended). A First Hearing took place on 14, 15
and 22 December 2006. By that stage the Petition had been amended,
and amended Answers produced.
Productions, lodged by the Petitioner, were considered by counsel in the
course of the Hearing.
Factual Background
[2] The
Petitioner is a national of Belarus. He left Belarus
for the Republic of Ireland
in March 2002 where he had obtained a work permit. He entered the United
Kingdom from there on 3 January 2003. He applied for asylum. His application was refused on or about 28 February 2003 [7/1 of
Process]. He appealed. The appeal was dismissed by an Adjudicator on 18 August 2003 [7/3]. The Petitioner sought leave to appeal to the
Immigration Appeal Tribunal. Leave was
granted on 24 October 2003
[7/4]. The appeal was subsequently dismissed
in October 2004 [7/5]. In November 2004,
the Petitioner applied to the Immigration Appeal Tribunal for leave to appeal
to the Court of Session. All proceedings
hitherto had taken place and all applications had been made in England. The IAT refused the Application in December 2004
[7/7]. An application to the Court of
Session for leave to appeal was not proceeded with [7/8].
[3] By
letter (with accompanying documents) dated 15 August 2005 (the "Further Submissions") [6/1],
the Petitioner's solicitors requested the Home Office to consider what was
described as a fresh claim for
asylum. By letter dated 26 November 2005
(the "Decision Letter"), an official acting on behalf of the Secretary of State
for the Home Office (the "Respondent") rejected the claim and determined
that the Further Submissions did not amount to a fresh claim. The consequence
of that is that there is no further statutory right of appeal.
Issues
[4] The
Petitioner challenges the Decision on a variety of grounds. Essentially, the Petitioner contends that the
Respondent was not entitled to conclude that the Further submissions did not
amount to a fresh application within
the meaning of Rule 353, and that he failed to give adequate and comprehensible
reasons.
Legal Framework
[5] Rule 353
of the Immigration Rules (HC 395)(as amended) provides as follows:
"When a human rights claim
or asylum claim has been refused and any appeal relating to that claim is no
longer pending, the decision maker will consider any further submissions and,
if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim
if they are significantly different from the material that has previously been
considered. The submissions will only be
significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously
considered material, created a realistic prospect of success, notwithstanding
its rejection."
[6] There
was much discussion about the approach which Respondent and the Court had to
adopt. In summary, in my opinion, the
Respondent must consider (i) whether the new material is significantly
different from the material previously considered, and (ii) if it is
significantly different, whether it, taken together with the previously
considered material, creates a realistic prospect of success in a further
asylum claim before an adjudicator. This
is a relatively modest test for an applicant to pass. It amounts to little more than there being a
reasonable chance that the claim might succeed (R ex parte Rahimi v SSHD [2005]
EWHC 2838 (Admin) 21 November 2005 Collins J at paragraph 12; Collins J subsequently modified his
approach to other aspects of the legal framework in Naseer v SSHD [2006] EWHC 1671
(Admin) 21 June 2006, at paragraphs 32 and 37; R ex
parte Palash v SSHD [2006] EWHC 2702
(Admin) at paragraph 9).
[7] The
Respondent must consider whether there is a realistic prospect of an
adjudicator (giving the proceedings anxious scrutiny) concluding that the
Petitioner will be exposed to a real risk of persecution on return to Belarus. In doing so, the Respondent will assess the
material, old and new. All such new
material will be "new evidence" unless the further submissions consist only of
legal argument. Material which could
reasonably have been made available at the earlier stage will not be
considered. Thus, the new material may
consist of new evidence to support a fact previously asserted, or it may
consist of a recent event such as the receipt of a court summons to support a
new submission or to support a fact previously asserted or both. In my opinion, it is somewhat unrealistic to
suggest that the latter category need not pass the tests of significance and
apparent credibility (a recent event obviously passes the {non-}availability
test), particularly where the categories of material may overlap, and where the
Respondent has to apply his mind to the broad test of realistic prospect of success, the parameters of which are flexible
rather than hard-edged. An alleged
change of circumstances which had no appearance of credibility such as a recent
but obviously forged warrant or summons or an assertion that a recent military
coup had taken place, when it was well known that no such event had occurred or
that it had failed to overthrow the government concerned, would surely be
disregarded because the new material had no apparent credibility (cf Nazir v SSHD 2002 SC 124 at 145E).
[8] If
the new material is significant, apparently credible, and where appropriate was
not previously available, and, when taken together with the previously
considered material, is reasonably capable of producing a different outcome
(i.e. a favourable view could be taken of the new claim by an adjudicator
despite the unfavourable conclusion reached on the earlier claim), the
relatively modest test will, it seems to me, have been passed (see for example Rahimi ibid at paragraphs 13-15,
and 18-20, as subsequently
explained in Naseer at paragraphs 32-36).
[9] The
Court is not concerned with the merits of the Respondent's decision but whether
as a matter of reasonableness or rationality in all the circumstances, or as a
matter of law, and the two may overlap, he was entitled to reach the decision
made. It is thus not for the Court to
form its own view on whether there is a realistic prospect of success, or on
whether an adjudicator properly directing herself on the law would conclude on
the basis of all the material that there was a real risk of the Petitioner
being persecuted on being returned to Belarus.
However, the Court must decide whether the Respondent acted within the
foregoing legal framework and whether the decision was rational or irrational.
[10] In short, the test the Court must apply is essentially Wednesbury reasonableness, in its
current state of development. However,
as asylum is in issue, all decision-makers, including the Respondent and the
Court, must give anxious scrutiny to
the material placed before them (see generally R v SSHD ex p Onibiyo 1996
QB 768, Cakabay v SSHD 1999 Imm AR 176 at 189, 194-195
and Bugdaycay v SSHD 1987 AC 514 at 531F-G). In particular, the Court must be satisfied
that the Respondent has addressed the correct questions or issues and given
anxious scrutiny to them. Dicta in these authorities are
indicative of the proper approach to
these issues. The dicta should not, in my opinion, be over-analysed as if they were
the text of statutory provisions (see Nassir
v SSHD 1999 Imm AR 250 at 253-4) or some binding
formula. In applying these principles,
the Respondent's decision must be read as a whole, fairly and reasonably and in
a commonsense way, albeit with anxious scrutiny. Such a reading of the decision must be able
to identify proper and adequate reasons for the decision which deal with the
substantial questions in issue in an intelligible way (Koca v SSHD 2005 SC
at 487 at 500 paragraph 19;
Wordie Property Company Ltd v Secretary of State for Scotland 1984
SLT 345 at 348; Singh v SSHD 2000 SC 219 at 222H;
and South Bucks DC v Porter (No 2) 2004 1 WLR 1953
at 1964 paragraph 36, except the last sentence which deals with the
statutory planning appeal requirement of substantial prejudice).
Respondent's Decision on Original Application for Asylum
[11] The Petitioner's claim that he had a well-founded fear of
persecution in Belarus was based upon (i) his membership of the Belarus
Popular Front, and his political opinions;
(ii) arrests on three occasions, detention and beatings by the
police, (iii) the assertion that, as a Catholic, he was not allowed to practise
his religion, and (iv) his fear of ill-health from radioactivity in
Belarus.
[12] The claim was rejected by letter dated 28 February 2003
[7/1] on the grounds that (i) while the security forces in Belarus
continued to arrest and detain arbitrarily, these were most often in connection
with unauthorised demonstrations, (ii) the petitioner's arrests appeared
to be lawful; (iii) the claim
amounted to the police abusing their position rather than persecution, (iv) the
Respondent did not consider that the Petitioner would be of continuing interest
to the Belarus authorities, (v) the constitutions of Belarus allow freedom
of religion, and (vi) there are areas within Belarus which contain a large
Catholic population and which are free from radioactivity.
The Adjudicator's Determination
[13] The Adjudicator found that the policies of the Belarus
government aim to crush political opposition and to repress civil society [7/3 paragraph 22]; that the human rights position was poor, and
the judiciary were not independent [paragraph 23]. The Petitioner was found to be a truthful
witness and his account was accepted in its entirety by the Adjudicator [paragraph 24]. That account narrated inter alia that (i) he had joined the Belarus Popular Front
in 1993, (ii) he had been arrested, detained and beaten on three
occasions between 1993 and 2001, (iii) his name had been removed
from the housing list, (iv) his wife was dismissed from her employment, (v) he
was prevented from starting a business by the local authorities and taken to
court over his business activities, (vi) the prosecution authorities had
begun a case against him for anti-constitutional behaviour and public disorder,
(vii) he had received weekly visits at night from the police and threats
from criminal elements, believed to be supported by the police.
[paragraphs 5, 6, 12 and 13], (viii) he left Belarus
because of the psychological pressure and because and acquaintance in the
police there had told him that there was a file against him for anti-government
activity and that he should leave the country [paragraph 13] and (ix) since
his departure from Belarus, the police had visited his family on several
occasions because he was "needed in court" [paragraph 12]. In the course of the hearing before the
Adjudicator, the Petitioner produced a court summons, sent to him by his mother
in Belarus.
[14] The Adjudicator concluded inter
alia that (i) the court summons produced did not relate to criminal
charges, and that it could not be accepted that the Petitioner would be
subjected to criminal charges, unfair trial imprisonment or ill-treatment if
returned to Belarus [paragraph 2], (ii) the Petitioner's fear of
arbitrary arrest, if returned to Belarus, was not well-founded because,
following his last arrest in 2001, he remained in Belarus for seven months
without further arrest, without any charges being brought and without any
threats from criminal elements [paragraphs 25 and 26], (iii) the
Petitioner could avoid such threats by relocating elsewhere in Belarus [paragraph 27],
and (iv) there was no evidence to show that failed asylum-seekers face
persecution or human rights abuses on return to Belarus or that former
political activists would be persecuted on the basis of their past activities [paragraph 29].
The Immigration Appeal Tribunal's Decision
[15] The grounds of appeal were, in summary, that (i) the
Adjudicator had ignored the terms of the summons produced which referred to
criminal sanctions for non-compliance, (ii) the Petitioner was of enduring
interest to the Belarus authorities, (iii) official permission was
required to relocate within Belarus and this was impossible to obtain, and (iv) the
adjudicator's conclusion regarding the risk to failed asylum-seekers and
political activists was irrational.
[16] The appeal tribunal concluded that (a) the Adjudicator was
not necessarily wrong to take the view that the summons related to civil
proceedings, (b) the consequences of failure to comply with it were not
such as to conclude that the Petitioner would be unlikely to receive a fair
trial, or face persecution if convicted and sent to prison, (c) while
internal relocation would be difficult, the evidence did not justify the
conclusion that it would be impossible, and (d) the Adjudicator was
entitled to come to the conclusions she reached for the reasons given.
The Decision Under Challenge by Judicial Review
[17] The Further Submissions to the Home Office referred to and
relied heavily upon correspondence and a summons directed at the Petitioner's
mother requiring her to attend with the police authorities in July 2005
and provide them with details of his whereabouts. What, if anything, happened in July 2005,
is not disclosed. Reference is also made
to correspondence from a friend who was involved in political activities and
who has been arrested. One of the
letters (from "Olga" and undated), states that the District Department of
Internal Affairs threatened to make "big trouble for her" (the Petitioner's
mother) if she did not reveal the Petitioner's whereabouts. Another letter (dated 23 February 2005) records a friend's arrest
and ill-treatment at the hands of the police and continued interest in the
Petitioner's whereabouts. Various legal
arguments were advanced under reference to several authorities. However, there is an element of "cut and
paste" in the text as, at several places in the Further Submissions, reference
is made to the Petitioner's fear of returning to "Azerbaijjn" rather than Belarus. "Azerbaijjn" has no relevance at all to the
claim or these proceedings.
[18] The US
Department of State Report on Human Rights Practices in Belarus
in 2004, and dated 28 February
2005 [6/1/33],
confirmed that a repressive regime continued to operate in Belarus; its human rights record was poor and the
judiciary were not independent. An
Amnesty International Report was also produced with the Further Submissions but
was not referred to by counsel.
[19] In the Decision Letter [6/2], the Respondent, or more
correctly the official acting on his behalf, states inter alia:
"Your client has provided
various letters and translations of Court Summons allegedly addressed to his
mother. We are not persuaded that their
production adds any weight to your clients (sic) case. It would appear unlikely, given your
clients(sic) alleged level of involvement, that after some years the
authorities would still be pursuing him.
The Immigration Tribunal in their determination of 15/10/04 [7/5] stated that even if it was accepted that your
client was a political activist then he had the option of internal flight which
was likely to be difficult but not impossible." (the "first passage")
[20] It can thus be seen from this first passage that (i) the
Respondent was not persuaded that the summons and correspondence added any
"weight" to the Petitioner's case, and (ii) it appeared to him "unlikely"
that the Belarus authorities would be pursuing the Petitioner after the passage
of some years given his alleged level of "involvement" (presumably in political
activities). The Respondent also noted
the Immigration Appeal Tribunal's finding that internal flight, while
difficult, would not be impossible. The
Decision Letter then proceeds to sum up what has already been stated and
concludes this part of the decision as follows:
"We are not persuaded that
these documents substantiate your clients (sic) claim that he would be subject
to treatment that would engage Articles 2, 3, and 8 of the ECHR
on his return to Belarus." (the "second passage").
[21] After considering and rejecting the Petitioner's eligibility
for a grant of Discretionary Leave, the Decision Letter continues:
"Some points raised in your
submissions were considered when the earlier claim was determined. They were dealt with in the letter giving
reasons for refusal dated 28/2/03 [7/1- Respondent's decision
on original application for asylum] and the appeal determinations of both 18/8/03 [7/3- by the adjudicator] and 15/10/04 [7/5- by the IAT].
The remaining points raised in your submissions, taken
together with the material previously considered in the letter/determination,
would not have created a realistic prospect of success.
The asylum claim has been reconsidered on all the
evidence available, including the further representations, but we are not
prepared to reverse our decision of 28/2/03 which was upheld at appeals
on 18/8/03 and 15/10/04" (the "third passage")
The
remaining part of the Decision Letter is formal.
Submissions
[22] The petitioner's submissions are set forth at great length in
the amended petition, which Mr Devlin prepared, at the request of another
judge before whom the proceedings called at an earlier stage. He developed those submissions in the course
of the Hearing. In summary, the
petitioner's arguments are:
i. The requirement that the
Further Submissions be "significantly different" from the material previously
considered, does not imply that there must have been a change in the factual
basis of the application. Convincing fresh
evidence of the same persecution previously alleged is capable of giving rise
to a fresh claim (R v SSHD ex p Ravichandran (No 2) [1996 Imm
AR 418 at 431).
ii. The new material must
be such as might reasonably lead another Immigration Judge to reach a different
result e.g. if it goes to overcome the doubts about an applicant's credibility
which led to the dismissal of his original claim (Onibiyo at 381).
iii. The Respondent did not
keep clearly in his mind that he was deciding whether a fresh claim had been
made, but asked himself whether the Further Submissions were well-founded.
iv. The content of the Further
Submissions taken together with previously considered material create a
realistic prospect of success where (a) the content of the Further
Submission is apparently credible, there being nothing on its face to show that
the content is incredible; if
investigation is required to determine credibility then the material is
apparently credible (SSHD ex p Boybeyi [1997]
Imm AR 491 at 494-7; Hassan v SSHD 2004 SLT 34 at 40F paras. 36-37), and (b) the
content of the Further Submission is capable of having an important influence
on the result of the case, although it need not be decisive. Here, no reasonable Secretary of State
properly directing himself in the relevant law could have found that the
content of the Further Submissions was not apparently credible (Onibayo at 381-383). The Adjudicator had found the Petitioner to
be a "witness of truth". Moreover, no
such Secretary of State so directing himself would have found that the content
of the further submissions could not reasonably go to overcome doubts which led
to the dismissal of the original claim.
The doubts which led to the dismissal of the original claim related to
(a) whether the Petitioner faced unfair trial, imprisonment or ill-treatment
in detention, (b) whether the Belarusian authorities had any enduring
interest in the Petitioner, and (c) whether the Petitioner would face a
threat from criminal elements in Belarus.
The new material could reasonably allow an Immigration Judge to overcome
the doubts expressed by the Adjudicator as to whether the Petitioner faced
unfair trial, imprisonment or ill-treatment in detention. The new material suggested that the
Belarusian authorities did have an enduring interest in the Petitioner. This could reasonably allow an Immigration
Judge to over come doubt (b) above.
Doubt (c) becomes irrelevant once it is accepted that the
Petitioner has a well-founded fear of persecution at the hands of the State,
apparently in pursuit of an official policy;
thus there is nowhere in the State where the Petitioner could safely
relocate; there is therefore no internal
flight alternative. Nothing in the
documents indicated there was any lack of credibility.
v. The Respondent failed to
give adequate and comprehensible reasons for his decision (Wordie Property Co Ltd v Secretary
of State for Scotland 1984 SLT 345 at 348). The Decision Letter left real and substantial
doubt as to why the Respondent (a) was not persuaded that the content of
the Further Submissions added any weight to the Petitioner's case, (b) rejected
the evidence that the Belarus
authorities were still pursuing the Petitioner and concluded that internal
relocation would not be impossible. It
was also submitted that there was real and substantial doubt as to whether the
Respondent accepted that the summons presented with the Further Submissions was
genuine and related to criminal proceedings, and whether the Respondent had
taken into account the up to date objective evidence in relation to the treatment
by the Belarus
authorities of political activists. The informed reader does not know how the
principal points have been resolved.
[23] In the course of his submissions, counsel for the Petitioner
also advanced the following two propositions.
First, he submitted that the Respondent erred in law in that he
dismissed the new material that accompanied the Further Submissions on the
grounds of weight. Weight, at best was
peripheral to the question whether a fresh claim was being made. This indicated that the Respondent was not
considering whether the claim was a fresh application. Second, he submitted that the Respondent
erred in that he found that the content of these Further Submissions (a) had
already been considered and (b) taken together with the previously
considered material, did not create a realistic prospect of success. The new material was evidence of the
intensification on the part of the Belarus
authorities to persecute on a national basis all opposition to the regime. It constituted a change of circumstances, and
related to the Petitioner's current fear of persecution and to recent events; or alternatively it was new evidence bearing
on issues previously determined. The
change was that the police were now harassing the Petitioner's mother, a
summons had been issued, and there was a current background of arrests (Nazir v SSHD 2002 SC 134). The question was whether the Respondent
was entitled to find that the content of the further submissions could not
reasonably allow a decision-maker to overcome the doubts which had led to dismissal
of the original claim.
[24] The main difference between Rule 353 and 354 was that
the order of the decision making process was reversed. Now, the Respondent asks himself whether the
further submissions are well founded and, if they are not, he considers whether
they amount to a fresh claim. Questions
of significance, credibility and availability still arise by implication. Rule 353 was not wider in scope than
Rule 346, and the authorities under the latter rule were relevant to the
proper approach to the new Rule.
[25] In the course of his submissions counsel for the Petitioner
also referred to Bugdaycay v SSHD 1987 1 AC 516 at 531E-G, Smith 1996 QB 517, Nazir v SSHD 2002 SC 145se 15 at 34G; the Respondent's analysis of this case was
strained; the distinction drawn between
a change of circumstances and new evidence was temporal; to
Januzi v SSHD 2006 2 WLR 397
at 412E-413B, which reviewed the
law relating to internal relocation and Linn
v SSHD 2005 SLT 301 at 304E-F, paragraph 12, which also considered that
topic. Reasonableness is the test to be
applied when deciding whether a relocation alternative is open to an applicant
for asylum (Naseer v SSHD [2006] EWHC 1671 (Admin) 21 June 2006, Collins J at paragraphs 37 &
38).
[26] Mr Stewart, for the Respondent, submitted that under Rule 353,
there was a three stage test, the first being whether to reject the
application. If the application is
rejected, the second and third stages are considered. Rule 353 amended the previous test, as
set forth in paragraph 12 of Nazir. The second stage or test was the Acid Test in Onibiyo
which was still applicable. The
third test was the familiar Wednesbury test
as set forth in Ndaya v SSHD [2006] CSOH 19 2 February 2006 Lord Brodie at paragraphs 15, which Mr Stewart
expressly adopted. Reference was also
made to paragraphs 20-22 although I was not addressed on the distinction,
drawn by the Lord Ordinary in Ndaya,
between the test in Rule 353 and the test in Onibiyo or how it might affect my task in these proceedings.
[27] Mr Stewart highlighted various elements of the
Adjudicator's Determination, namely (i) visits from the police,
attributable to registration of the Petitioner's business (paragraph 5 of
the Determination), (ii) threats by criminal elements (paragraphs 12
& 27), (iii) acceptance that Belarus has an oppressive regime
(paragraphs 22 and 23), (iv) a court summons in relation to a
civil matter, and (v) internal relocation.
The appeal before the IAT concentrated on the court summons, the alleged
enduring interest in the Petitioner by the Belarus authorities, and internal
relocation as did the further appeal documents [7/6 and 7/8]. The theme of the Further Submissions was (i) the
pursuit of the Petitioner by the authorities, (ii) the summons issued to
the Petitioner's mother, and (iii) general conditions in Belarus
in relation to human rights and the repressive regime there. However, the material was very far removed
from showing that the police were seeking to bring criminal charges against the
Petitioner for political activity. At
best, all this constituted new evidence in relation to the same claim and did
not constitute a change of circumstances.
[28] With reference to the Decision Letter, Mr Stewart submitted
that (i) the Respondent was entitled to assess the material and thus the
weight to be attached to it, (Nkereuwen
v SSHD 1999 Imm AR 267 at 270, Naseer v SSHD [2006] EWHC 1671(Admin) 21 June 2006 Collins J paragraph 22
and 37), (ii) while not the clearest or most elegant, the Decision Letter
nevertheless satisfied the test in Wordie
Property Company Ltd v Secretary of
State for Scotland 1984 SLT 345. Reference was also made to Singh v SSHD 2000 SC 219 at 222H-223C,
and (iii) the material considered by the Respondent fell into the
second category (new evidence bearing on matters or factual assertions
considered in the original application) identified by Lord Macfadyen in Nazir (at paragraph 25). These matters were the police interest in the
Petitioner, and the repressive nature of the Belarus
regime. It was thus perfectly proper for
the Secretary of State to weigh the matters put before him. As for the Petitioner's second proposition
branch (a) the Respondent was dealing with the various claims in the Further
Submissions for which no further evidence had been produced. As for branch (b) the proper approach is
not to consider whether the Adjudicator's doubts might be overcome but to
follow Rule 353 and consider whether the new material and the pre-existing
material, taken together, created a realistic prospect of success. It was accepted that this was a low test but
one which had to be given anxious scrutiny.
Mr Stewart also accepted that if it were correct to assume that the
police would pursue the Petitioner throughout Belarus,
then the Decision Letter was flawed on the question of internal
relocation. The Adjudicator did not
consider the question of internal flight because of his finding that there was
no real risk of persecution.
[29] Mr Stewart also pointed out that Hassan had been successfully reclaimed. He produced a copy of the Inner House
Interlocutor dated 23 March 2006 dismissing the petition "in respect
that the Lord Ordinary failed to recognise that, in terms of Rule 346
of the Immigration Rules, a further representation will be treated as a fresh
application for asylum only if there is a realistic prospect of success and
that, in a case of non-state persecution, there could be no such prospect
unless there was an offer to prove failure by the home state to afford
protection against that ill-treatment, as required by the decision in Horrvath v Secretary of State for the Home Department [2001] 1 AC 489, which, in this case, there was not."
Discussion
[30] The starting point is the Decision Letter. I bear in mind the legal framework referred
to above and that the basis of the Respondent's decision calls for the most
anxious scrutiny (Bugdaycay at 531F-G; R v Ministry
of Defence ex p Smith 1996 QB 517 at 537G-538D ). While it must be read as a whole, counsel
concentrated their submissions on the passages quoted above.
[31] In the first and second passages and indeed, in all the text
which precedes them, it seems to me that the Respondent is addressing the
initial question to be considered under Rule 353, namely whether the
Further Submissions fall to be rejected.
His answer to this question is not the subject of attack. It is, in my opinion, the third passage which
considers the other question (which falls into two parts) under Rule 353,
namely whether the Further Submissions amount to a fresh claim and, in
particular, whether they are significantly different from the material
previously considered, and when taken together with the earlier material,
created a realistic prospect of success, notwithstanding their rejection.
[32] The Respondent, in the first and second passages, is expressing
his own view of and deciding the merits of the Further Submissions. He considers and rejects them. Thus, he states that he is not persuaded that their (sic) productions add
any weight to your clients (sic) case.
The Decision letter proceeds It
would appear unlikely ..... that.... the authorities would still be pursuing
him. The passage concludes by
stating that We are not persuaded that
these documents substantiate your clients (sic) claim.....
[33] In the first part of the third passage, the reference to Some points raised in the Further
Submissions having been previously considered when the earlier claim was
determined, is vague. However, it is
reasonably clear from the material before the Respondent that this must relate
to (i) the nature of the regime in Belarus
and its human rights record, (ii) lack of access to proper judicial
process, and (iii) the argument based on religion. There would appear to be no new evidence
which affects these matters. The US
Department of State Report confirms findings previously made by the Adjudicator
(see for example 7/3 at paragraphs 22 and 23).
[34] The new material relates to the summons sent to the
Petitioner's mother and the correspondence to show that there is (contrary to
the Adjudicator's finding on the original material [7/3 at paragraph 26]
an enduring interest in the Petitioner.
This material thus seems to constitute new evidence about a matter
previously considered, although the summons might also be classified as a new
event and therefore a change of circumstances.
[35] The final part of the third passage of the Decision letter
seems to me to be bare assertion. Again,
the (remaining) points are not
identified, but as the Respondent is here referring to realistic prospect of success, he must be directing himself to the
material not previously produced. This
material as set forth above, relates to the summons directed at the
Petitioner's mother, apparently with a view to her disclosing the Petitioner's
whereabouts to the Belarus authorities, the assertion that the Belarus
authorities had an enduring interest in the Petitioner and that he would be at
risk (to put it broadly) if he were to return.
[36] The Respondent does not give any reason in the third passage
for stating that these points taken together with the material previously
considered do not create a realistic prospect of success. It can be inferred from the first passage
that the Respondent has rejected the
content of the new material, found that it is not credible and found as a fact
that the Belarus
authorities have no enduring interest in the Petitioner. Although the Respondent, when considering the
question of realistic prospect of success, will or at least may be influenced
by his initial assessment and rejection of the Further Submissions, the
question he must ask himself and thus his task is a different one. It is to assess the Petitioner's prospects
before an adjudicator. He cannot rely
solely on his findings in relation to rejection
of the Further Submissions because these flow from his consideration of a
different question. He expresses no view
on whether the new material is apparently credible. He does not express the view that the summons
or the sentiments expressed in the correspondence are not genuine or have been,
in some way, manufactured to assist the Petitioner's claim. One is therefore left in the dark as to
whether the Respondent has truly considered whether there is a reasonable prospect
that an adjudicator could form a
favourable view of a new claim, notwithstanding the Respondent's rejection of
it, if the new material had to be considered along with the previously
considered material. In particular, the
Respondent has not expressed a view on whether it could reasonably be concluded
that the Belarus authorities still have an enduring interest in the Petitioner
and/or whether internal relocation was an option, given the absence of material
to indicate that the Belarus authorities do not control the whole of Belarus,
or would be unduly harsh for the Petitioner;
or how those circumstances combined with the apparently undisputed fact
that the judiciary in Belarus are not independent (see for example Hrom v SSHD Appeal No [2002] UKIAT01598 21 May 20022 paragraphs 5,
11, and 12). These matters are at
least capable of being significant or influential although not necessarily
decisive. They bear on some of the
essential ingredients of a claim for asylum (R v SSHD ex parte
Ravichandran 1996 Imm AR 418 at 431;
SSHD v Senkoy 2001 Imm AR 399 at 405. Whether they are of sufficient weight for
a claim to succeed is not for the Court to decide in a judicial review
application.
[37] The Respondent might well have stated that, on the assumption
that the new material is apparently credible and creates a reasonable prospect
of establishing that the authorities had an enduring interest in the
Petitioner, that still did not create a realistic prospect of success because
an enduring interest by the Belarus authorities, without more, was in his view,
not reasonably capable of establishing that the Petitioner's fear of
persecution was well founded. However he
does not do so. The reasoning process,
as noted above, is absent. It is thus
difficult to conclude that the Respondent has given anxious scrutiny to the
question whether the Further Submissions amount to a fresh claim. In my opinion,
reading the Decision Letter as a whole, fairly and reasonably in a commonsense
way, still leaves a real and substantial doubt as to (i) whether
Respondent truly considered the correct question in order to determine whether
the Further Representations amounted to a fresh
claim and (ii) why the Respondent considered that the new material,
when taken along with the previously considered material, gave the Petitioner
no realistic prospect of a favourable outcome before an adjudicator. The informed reader is left in a real and
substantial doubt as to whether the Respondent considered the correct question
and what the Respondent's reasons were.
On the face of matters, the new material supported the assertion that
there was an enduring interest in the Petitioner on the part of the Belarus
authorities. Moreover, there was nothing
to suggest that the Belarus
authorities did not control or enforce their policies throughout the whole of Belarus. Internal relocation, on any reasonable view could
be regarded, prima facie, as problematical. Whether this would or could be sufficient to
tip the scales in favour of the Petitioner before an adjudicator, or whether
the Respondent, properly applying his mind to the question these matters, ought
reasonably to have concluded that the totality of the facts and circumstances
before him would create a reasonable prospect of success before an adjudicator,
is not for me to decide.
[38] What I do decide is that, in the foregoing circumstances, the
Respondent has fallen into error. It
seems to me that the absence of reasons indicates that the Respondent has not
correctly addressed himself to the correct question. This is an error of law fundamental to the
issues before him. The absence of
reasons also tends to show that the Respondent has not given the claim the
anxious scrutiny required. He has thus
misdirected himself in law. He has
failed to give or to give adequate reasons for his decision and has not, so far
as appears from the terms of the Decision Letter, given anxious scrutiny to the
Petitioner's claim. Whether the
Respondent can properly arrive at the same decision by giving proper and
adequate reasons remains to be seen.
Result
[39] I shall therefore sustain the Petitioner's plea-in-law, repel
the Respondent's pleas-in-law and reduce the Decision Letter. All questions of expenses are, meantime,
reserved.
