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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 25
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OPINION OF LORD
BRACADALE
in the petition of
MAJID POURMINI
ABARQUEY (AP)
Petitioner;
for
Judicial Review of
a Determination of the Immigration Appeal Tribunal
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Devlin; Drummond Miller WS
Respondent: Lindsay; H Macdiarmid
9 February 2007
[1] The
petitioner, who was born on 23 July
1970, is a citizen of Iran.
The Respondent is The Secretary of State for The Home Department. After
arriving in the United Kingdom
without a valid passport or entry clearance he claimed asylum on 27 November 2000. By letter dated 16 February 2001 the respondent refused his claim. He appealed to the Special Adjudicator who
refused the appeal by a determination dated 17 June 2002. By a
determination dated 17 July 2002
leave to appeal was refused by the Immigration Appeal Tribunal ("IAT").
[2] The
petitioner claimed that because of his involvement in a political organisation
called the "Javannah Mobarez" he was at risk of persecution by the military and
security organisations in Iran. He claimed that sometime after becoming
involved with this organisation the following events occurred. While he and another person were distributing
leaflets they were chased by the Basjis (a security force). While some officers pursued the other person,
the petitioner was caught by one of the Basjis who produced a gun and ordered
the petitioner to place his hands in the air in order that he should be
searched. A leaflet was recovered on his
person and, as the officer was reading it, the petitioner turned round, seized
the barrel of the gun with his left hand and punched the officer with his right
hand. The gun went off, injuring the
petitioner's hand. He escaped from the
Basjis and went to the house of a friend.
A doctor, who was a friend of the petitioner's brother, attended and
carried out an operation on the petitioner's hand. Thereafter, he went into hiding and moved
from place to place. He claimed that the
friend was captured and under torture confessed and disclosed the petitioner's
name to the authorities. He spent two
years in hiding before leaving Iran
for the United Kingdom.
[3] The Adjudicator rejected the account
given by the petitioner as being incredible.
He found both the petitioner's account of his involvement with the
political organisation and his account of the medical operation incredible. The Adjudicator concluded that the petitioner
was an economic migrant.
[4] The
relevant rule governing appeals to the IAT from the Adjudicator which was in
force at the time of the petitioner's hearing was Rule 18 of the Immigration
and Asylum Procedure Rules 2000. Rule
18(7) provides:
"Leave
to appeal shall be granted only where -
(a) the Tribunal
is satisfied that the appeal would have a real prospect of success; or
(b) there is
some other compelling reason why the appeal should be heard.
[5] Mr Devlin, who appeared on behalf
of the petitioner, submitted that the IAT erred in law in respect that they
found that the appeal by the petitioner against the determination of the
Adjudicator would have had no real prospect of success. In support of that submission Mr Devlin
advanced two propositions. First, that
the IAT erred in law in finding that grounds of appeal 1, 2, 3, 5 and 6 in the
application for leave to appeal disclosed no real prospect of success; and
second, that the IAT erred in law in that it failed to take several obvious
points which had a real prospect of success.
[6] Mr Lindsay,
who appeared on behalf of the respondent, submitted that the decision by the
IAT to refuse leave to appeal was lawful and reasonable and could not be
challenged by judicial review. The IAT
did not err in law in the way that it treated the grounds of appeal before it,
none of which had any real prospect of success.
Secondly, there were not obvious points of convention law with strong
prospects of success that the IAT had failed to take into account in favour of
the petitioner. Mr Lindsay
submitted that this was not a borderline case as far as the Adjudicator was
concerned. The Adjudicator was in no
doubt: he did not believe the
petitioner's account. Mr Lindsay
accepted that in a finely balanced case the asylum seeker should be given the
benefit of the doubt but that did not apply in a clear cut case.
[7] The
grounds of appeal were directed at the treatment of credibility by the
Adjudicator. I did not understand there
to be any significant dispute between the parties as to the principles to be
applied in judging the assessment of credibility by the Adjudicator. The various considerations have conveniently
been brought together by the Inner House in Esen
v Secretary of State for the Home
Department, unreported, 5 May 2006, ([2006] CSIH 23XA74). Lord Abernethy, delivering the opinion of the
Court, said at paragraph 21:
"Credibility is
an issue to be handled with great care and with sensitivity to cultural
differences and the very difficult position in which applicants for asylum
escaping from persecution often find themselves. But our system of immigration
control presupposes that the credibility of an applicant's account has to be
judged (Asif v Secretary of State for the Home Department 2002 S.C. 182). Credibility is a question of fact which has
been entrusted by Parliament to the adjudicator. The adjudicator is someone specially
appointed to hear asylum appeals and has the benefit of training and experience
in dealing with asylum-seekers from different societies and cultures. Of course an adjudicator must give his
reasons for his assessment. A bare
assertion that an applicant's account is implausible is not enough (W321/01 A v
Minister for Immigration & Multicultural Affairs [2002] F.C.A.
210). But an adjudicator is entitled to
draw an inference of implausibility if it is based on the evidence he has heard
and in coming to his conclusion he is entitled to draw on his common sense and
his ability, as a practical and informed person, to identify what is or is not
plausible (Wani v Secretary of State for the Home Department 2005 S.L.T. 875)."
In addition, parties were agreed
that the Adjudicator's assessment of credibility could only be challenged on Wednesbury grounds.
Grounds
of Appeal 1, 5 and 6
[8] Grounds of Appeal 1 and 5
direct criticism at the reasoning of the Adjudicator leading to the following
conclusion at the end of paragraph 23 of his determination:
"I have
difficulty then in accepting that the group claimed to exist by the appellant,
in fact, existed or that he was a member of such a group."
[9] In
my opinion, it is important to have regard to the structure of
paragraph 23.
The contents of the
paragraph leading up to the conclusion comprise a number of elements of
analysis of the account given by the petitioner which led the Adjudicator to
the conclusion stated at the end of the paragraph. Certain of these elements are attacked in the
grounds of appeal. The first ground of
appeal is directed towards the following observation made by the Adjudicator:
"At C11, a
document submitted by the appellant, he claims that, while working as a taxi
driver, he was hired by a friend who was already involved in the Javanan
Mobarez. This conflicts with his
evidence in his statement that his primary source of income was from teaching."
Mr Devlin submitted that the
contents of the two statements were not inconsistent. It was of the nature of these cases that the
account given by an asylum seeker develops as he passes through the stages of
the process. Applying the appropriate
anxious scrutiny, this was not an inconsistency such as to allow the
Adjudicator to make an adverse finding on credibility.
[10] In relation to this ground of appeal Mr Lindsay submitted
that the Adjudicator was simply making an observation rather than a positive
finding that he did not believe the petitioner on the matter of whether he was
a school teacher or a taxi driver. This
was a peripheral observation and not central to the question of the credibility
of the petitioner with respects to the group.
This was an immaterial, peripheral observation which did not play any
material role in the finding at the end of paragraph 23.
[11] While I consider that there is force in the criticism of this
passage made by Mr Devlin, I am inclined to the view that Mr Lindsay
was correct to describe it as an immaterial, peripheral observation, not
central to the question of credibility of the petitioner. It seems to me that it did not play any
material role in the conclusion at the end of paragraph 23, particularly
in the light of points made later in the paragraph. Such an error would constitute an error in
law justifying the granting of leave to appeal only if it was in relation to a matter
which was material to the outcome. Errors
of which it can be said that they would have made no difference to the outcome
do not matter (R (Iran) [2005] INLR 633 paragraph 9).
[12] In ground of appeal 5, the petitioner attacks the reasoning in
paragraph 23 as amounting to guesswork and speculation rather than
deduction from fact. Mr Devlin drew
attention to three observations which the Adjudicator made. First, the following observation (observation
(a)):
"The existence
of cells for such a group would have been important in a country such as Iran
with a history of repression of free speech and of persecution of those
perceived as dissenting from the orthodox line.
The need to keep the formation of the cells secret and separate would be
vital to the continued existence of the group.
I do not find it credible that the appellant would have been able to be
integrated so quickly and easily into a group which was well aware of the
dangers and difficulties of its work in a country like Iran."
Next, the Adjudicator went on to
say this (observation (b)):
"The likelihood
of infiltration by security agents on behalf of the State would have been
high. The appellant nevertheless very
quickly became aware not only of the existence of separate cells but also of
the membership of those cells. There was
no suggestion of any security checks having been carried out. I do not consider that that it is likely to
have happened in a country such as Iran."
The Adjudicator then went on to say
(observation (c)):
"Furthermore,
the appellant claimed that the group published and distributed leaflets setting
out their claims and complaints. There
is no suggestion that anyone else in any of the cells came to the notice of the
authorities from 1995 until the appellant and his friend in July 1998. The likelihood of the appellant coming to the
attention of the authorities within two months of his having joined the group
while others with higher profiles and more onerous duties did not, is
slim. Given the situation in Iran,
I do not consider that is likely."
[13] In relation to observation (a) Mr Devlin submitted that
there was no evidential basis for saying this.
There was nothing to suggest that the Adjudicator had any knowledge of
this particular group. He simply
surmised as to how a reasonable person might behave. In relation to observation (b) Mr Devlin
submitted that the Adjudicator appeared to be saying there that it was beyond
human experience that this could happen.
Again, in relation to observation (c) Mr Devlin submitted that
there was no evidential basis for this finding.
[14] Mr Lindsay submitted that these observations made by the
Adjudicator were based on the application of common sense and everyday human
experience. The organisation of such
bodies into cells was well known to be in order to prevent the danger of
infiltration. It was implausible that
the petitioner would have knowledge of the membership of other cells. It was implausible that he would be so
readily accepted into a cell. So far as
the comment about the likelihood of the appellant coming to the attention of
the authorities within two months of having joined the group was concerned,
Mr Lindsay pointed out that all the Adjudicator said about that was that
the likelihood was slim. Although
another interpretation might be available in relation to that issue, the
question was whether such a conclusion was open to a reasonable adjudicator or
was it so unreasonable that no adjudicator could have adopted it. It was important to bear in mind that the
application of commonsense had to be made in the context of the situation in Iran
and in the light of the specialist knowledge of the Adjudicator. In paragraphs 19-22 the Adjudicator had set
out the information available in relation to the state of affairs in Iran.
[15] In my opinion the submissions of Mr Lindsay
in relation to these three passages which are criticised in ground of appeal 5
are well-founded. It is to be borne in
mind that the Adjudicator is someone specially appointed to hear asylum appeals
and has the benefit of training and experience in dealing with asylum seekers
from different societies and cultures.
The Adjudicator had before him information available in relation to the
state of affairs in Iran. He was entitled in coming to his conclusion
to draw on his common sense and his ability, as a practical and informed
person, to identify what was not plausible.
It seems to me that in these three elements of the analysis of the
account given by the petitioner the Adjudicator was doing no more than applying
these principles. It seems to me that in
looking at paragraph 23 as a whole it can be said that the Adjudicator
came to a reasoned conclusion.
[16] In the sixth ground of appeal Mr Devlin suggested that
there was a contradiction between the approach taken by the Adjudicator in
paragraph 23 and his conclusion in paragraph 30 that he did not
accept that such a group existed or that the incident with the Basjis occurred
as described by the petitioner.
Mr Lindsay submitted that there was no such contradiction because
in paragraph 23 the Adjudicator was testing the petitioner's account of
the group and the incident whereas in paragraph 30 the Adjudicator was
setting out his own conclusion. If one
looked at the last sentence of paragraph 23 and the terms of
paragraph 30, the same conclusion was reached. I agree that there is no contradiction
between the paragraphs. In
paragraph 23 the Adjudicator was analysing the petitioner's account while
in paragraph 30 he was developing his own conclusion on the evidence.
Grounds 2 and 3
[17] Grounds of appeal 2 and 3 were directed against the conclusions
of the Adjudicator in paragraphs 25 and 27 in relation to Dr Von
Kaehne, an expert witness who submitted a report on behalf of the
petitioner. In paragraph 25 it
appeared that the Adjudicator had incorrectly understood the petitioner's
position to be that he was under general anaesthetic for around one and a half
hours of the operation and remained conscious for the rest of the time. The petitioner's position had been that he
had a local anaesthetic and was awake throughout the entire operation. Mr Devlin submitted that even a minor
flaw in the Adjudicator's reasoning should not be ignored when applying anxious
scrutiny.
[18] Mr Devlin was critical of the Adjudicator's approach to
the information given by Dr Kaehne about the details of the
operation. The Adjudicator considered it
highly unlikely that the petitioner would have been able to recount the
treatment and regimen which was described in detail by the doctor. Mr Devlin submitted that this conclusion
was not based on evidence. The
petitioner was an educated man and would have been able to tell the doctor
about his treatment. There was no
evidence that he had no such knowledge in order to be able to describe the
treatment and regimen.
[19] Mr Lindsay submitted that the Adjudicator's
misunderstanding of the petitioner's position about the anaesthetic was a
peripheral and immaterial matter. The
reasons why the Adjudicator rejected the account of the operation were, first,
that he did not find it credible that a general practitioner would be able to
conduct a complex operation lasting four hours; and, second, he did not find it
credible that the petitioner would be conscious for such a long time while his
hand was being repaired. He submitted
that both these reasons were based on common sense everyday experience. These were decisions to which he was entitled
to come.
[20] As to the details of the operation, Dr Kaehne had referred
to the use of a local anaesthetic during the operation, to the use of
prefabricated needles, to the administration of intravenous Cephalexin
injections and after a few days the administration of Cephalexin capsules. Mr Lindsay submitted that it was simply
the application of common sense to conclude that someone who had undergone a
four hour operation to his hand would be unlikely to give that kind of detail
of the medical treatment. In addition,
the Adjudicator was entitled to comment on the oddness of the provenance of the
information.
[21] When considering the conclusions of the Adjudicator with
respect to the operation which the petitioner claimed was carried out on his
hand it is in my opinion important to read the analysis of the medical matters
as a whole. It is correct to say that it
appears that the Adjudicator has misunderstood the account given by the
petitioner about the anaesthetic.
However, I agree with Mr Lindsay that this was a peripheral and
immaterial matter and that the reasons why the Adjudicator rejected the account
of the operation are correctly identified by Mr Lindsay and do reflect the
application of common sense by the Adjudicator.
I agree that the same applies to the detailed account given of the
operation by Dr Kaehne.
Additional
ground
[22] Under reference to Regina v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929 Mr Devlin submitted that there was an additional obvious ground
which the IAT should have considered. It
should have been obvious that the Adjudicator erred in paragraph 27 in so
far as he declined to place any reliance on the report of Dr Kaehne on the
grounds that (i) the doctor made no mention of the petitioner having to leave
his friend's house within seven days of the shooting and remain in hiding for
two years; (ii) there was no indication
of where the information about the hand being bathed daily in Bethadine
originated; (iii) Dr Kaehne used
non-medical terms such as "bits of the hand";
and (iv) Dr Kaehne made reference to an assessment of the
credibility of the petitioner.
Mr Devlin submitted that the question of the petitioner remaining
at a friend's house and going into hiding would have had nothing to do with the
circumstances of the injury or the treatment and consequently nothing turned
about the failure of Dr Kaehne to mention it. It was clear from Dr Kaehne's report
that the information in relation to Bethadine had been derived from the
petitioner. As to the use of language by
Dr Kaehne, he had used appropriate medical terms in the course of his
report. The doctor did not include any assessment
of credibility. He simply commented that
he had no reason to doubt the account given to him by the petitioner. A reasonable adjudicator would have placed no
weight on that particular point.
[23] Mr Lindsay submitted that the test in Robinson had not been met.
These were not obvious points of convention law with strong prospects of
success. These were simply fair comments
and could not be described as irrational and unreasonable observations. While there might be stateable arguments they
were not obvious points.
[24] Rule 18(6) is in the following terms:
"The Tribunal
shall not be required to consider any grounds other than those included in that
application".
This must be read in the light of
the decision in Robinson in which it
was held that where there was a readily discernible and obvious point in his
favour, which had not been taken on his behalf, the IAT should nevertheless
consider the point. The Appeal
Court was careful to place limits on this
approach. At page 945G the Master
of the Rolls, Lord Woolf, said this:
"It is now, however, necessary for us to identify the
circumstances in which it might be appropriate for the tribunal to grant leave
to appeal on the basis of an argument not advanced before the special
adjudicator, or for a High Court judge to grant leave to apply for judicial
review of a refusal of leave by the tribunal in relation to a point not taken
in the notice of appeal to the tribunal.
Because the
Rules place an onus on the asylum-seeker to state his grounds of appeal, we
consider that it would be wrong to say that mere arguability should be the
criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course
focus primarily on the arguments adduced before them, whether these are to be
found in the oral argument before the special adjudicator or, so far as the
tribunal is concerned, in the written grounds of appeal on which leave to
appeal is sought. They are not required
to engage in a search for new points. If
there is readily discernible an obvious point of Convention law which favours
the applicant although he has not taken it, then the special adjudicator should
apply it in his favour, but he should feel under no obligation to prolong the
hearing by asking the parties for submissions on points which they have not
taken but which could be properly categorised as merely 'arguable' as opposed
to 'obvious'. Similarly, if when the
tribunal reads the special adjudicator's decision there is an obvious point of
Convention law favourable to the asylum seeker which does not appear in the
decision, it should grant leave to appeal.
If it does not do so there will be a danger that this country will be in
breach of its obligations under the Convention.
When we refer to an obvious point we mean a point which has a strong
prospect of success if it is argued.
Nothing less will do. It follows
that leave to apply for judicial review of a refusal by the tribunal to grant
leave to appeal should be granted if the judge is of the opinion that it is
properly arguable that a point not raised in the grounds of appeal to the
tribunal had a strong prospect of success if leave to appeal were to be
granted".
[25] With respect to the matters said by Mr Devlin to be
obvious matters falling within the test in Robinson
it seems to me again to be important to look at paragraphs 26 and 27 of
the Adjudicator's determination as a whole and to note their structure. The Adjudicator identifies a number of
criticisms which led him to question Dr Kaehne's expertise. He then went on to identify a number of
particular criticisms of his report.
Some of these are of more force than others. Some may relate to matters of greater
materiality than others. It seems to me,
however, that even if some criticism can be directed against certain aspects of
the comments made by the Adjudicator these are not material and on no view
could they be said to meet the test in Robinson. Even if some of the points could be said to
be arguable, they could not be described as points with a strong prospect of
success if argued.
[26] Accordingly, the petitioner's attack on the determination of
the Immigration Appeal Tribunal must fail.
I shall sustain the second plea-in-law for the respondent and repel the
petitioner's plea-in-law. I shall
dismiss the petition.
