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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 83
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P1753/06
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OPINION OF LADY
SMITH
in the Petition of
ALI ASHGAR HASISBI
Petitioner
for
Judicial Review of
a determination of the Immigration Appeal Tribunal to refuse leave to appeal
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Petitioner: Caskie, Advocate; Drummond Miller WS
Respondent: Carmichael, Advocate; C Mullin, Solicitor to the Advocate General
15 May 2007
Background
[1] The
Petitioner was born in 1963, in Tehran
and is a national of Iran.
He arrived in the United Kingdom
clandestinely, in the back of a lorry, on 29 August 2001 and claimed asylum on 30 August 2001. By letter dated 11 April 2002, his application was
refused by the Secretary of State for the Home Department. On 17 April 2002, a notice of
decision to issue removal directions was issued. He then appealed against the
refusal of his claim for asylum to an adjudicator. The appeal was heard on 18
October and 27 November 2002.
The petitioner was represented. By
determination promulgated on 10
February 2003 the adjudicator refused the appeal. The petitioner
then applied to the Immigration Appeal Tribunal ("IAT") for leave to appeal
against the determination of the adjudicator. Leave to appeal was refused in a
determination dated 13 March 2003.
In this petition, the petitioner seeks the reduction of the determination of
the IAT to refuse him leave to appeal. The only respondent is the Secretary of
State for the Home Department.
[2] In
order to qualify for asylum, the petitioner required and requires to have the
status of refugee under article 1A(2) of the Geneva Convention relating to the
Status of Refugees (Geneva, 28 July 1951; Cmnd 9171), as amended by the 1967
Protocol (New York, 31 January 1967; Cmnd 3906). That article requires that an applicant
establish that he is outside the country of his nationality owing to a
well-founded fear of persecution for a reason recognised under the Convention. The
reason founded on by the petitioner was his political opinions. It is for the petitioner to show that he is a
refugee. He bears the burden of proof.
The Petitioner's Statement
[3] The
petitioner's application for asylum was supported by a statement prepared and
signed by him dated 9 April 2002.
It included the following:
" 3. I was
forced to flee from Iran
in fear of my life after being discovered recording and distributing illegal
videotapes of Iranian entertainers who are banned in Iran.
I ran a café in Tehran City
through which I befriended many customers. As a group of friends we were all
fans of the entertainers Hadi Khnosandy and Parvis Sayad. Some of their work is
banned by the regime in Iran.
I had become involved in copying videos of their work and selling them for a
modest profit to friends and acquaintances in the café. My friends and I also
sold copies of the tapes to selected students in the hope that we might
influence their minds against the regime. We see the regime as corrupt and self
serving. It does not serve the people, as it should.
..............
5. On or about
the 9 or 10 August I was returning to my café in Narmak Farjam Shargy 141. I
had been home in order to get some tapes in order to sell them in the café. I
had two video recorders at home from which I copied tapes for sale. I arrived
at the café to find vans full of Sepah and Komiteh officials had surrounded the
café. I could see arrests were being made. I was frightened and decided not to
proceed any further. My immediate instinct was to return home. I then realized
that the next call would be my house. I decided to go to my brother-in-law's
house and lie low. My brother-in-law made enquiries in order to find out
exactly what had happened. He found out that three of my friends at the café
had been arrested and that subsequent to that the authorities had raided my
house and seized the video recorders. I knew then that it was a matter of time
before the authorities put out a summons for my arrest. Because of my past and
my father I knew that the authorities would come after me and I faced
execution.
6. My wife had
been at home when the authorities arrived. My wife was beaten by a female
officer and pushed to the floor. They had questioned my wife as to my
whereabouts and abused me verbally to my wife. They told my wife that when they
found me they would arrest me and kill me.
7. I have heard
of individuals who have been arrested in possession of banned videos that have
been executed by the regime. These videos are viewed as anti-Islamic and
therefore a crime against the State.
........................
16. I know that
if I were to be returned to Iran
that I face arrest and execution. The authorities want me for crimes against
the Islamic State. As such these offences are punishable with death."
[4] In
the statement the petitioner also explained that his father was a monarchist,
had worked inside the Shah's office during the Shah's reign and that he had
been arrested and imprisoned for two years after the departure of the Shah. He
had, he said, himself been discriminated against, the discrimination in
question consisting of him being refused a place at university.
[5] Further,
in his statement the petitioner said that he and his family left Iran
on around 16 or 17 August 2001. Their journey is described in paragraphs
10-14:
"..We left Tehran
city by bus. We travelled to Tabriz.
We stayed there for a couple of hours. We then travelled on by mini-bus to
Khoi....We stayed in Khoi for one hour, we then travelled on to a village near
the Turkish border. We then travelled by donkey for three days over the border
into Turkey.
11. Once in Turkey
we stayed in a village called Dobai Yazid. We stayed there for an hour or so
and then travelled onto Istanbul in
a bus. The agent took us to a house ......"
The statement then explains that
the agent returned three or four days later and they boarded the lorry that
night. They travelled in the lorry for eight days. The petitioner thus
describes a journey that took at least fourteen days plus the time taken to get
to the village near the Turkish border and the time taken to get from Dobai
Yazid to Istanbul.
The Petitioner's Asylum Interview
[6] The
petitioner was interviewed on 10 April
2002. He said that he was aware of the contents of his statement
and was satisfied that it explained his reasons for claiming asylum. At that
interview, he refuted selling the videotapes referred to and asserted that he
had been distributing them free of charge. That has remained his position. In
his oral evidence before the adjudicator, he asserted that the videotapes were
not merely of entertainers; they were, he said, political. His descriptions of
the "political" tapes were, however, on the findings of the adjudicator, "so
vague as to be quite useless".
The Adjudicator's Determination
[7] The
adjudicator did not believe the petitioner.
[8] Amongst
other things, he took the view that whilst the petitioner's statement referred
to the videos being of entertainers, of them being banned videos and of the
petitioner being aware of that fact, it did not explain that they had a
substantive political content. To that extent it was at odds with what was said
by him in evidence at the hearing. Similarly, it was at odds with his position
being that he was not selling the tapes but distributing them free of
charge. At paragraph 31 of his
determination he said:
"The Appellant
has said he had to flee Iran
because he was facing imminent arrest detention and, potentially execution for
distributing subversive video tapes. The first statement of his evidence is the
narrative one incorporated, indeed the basis for, his SEF. In his subsequent
interview he stated he had written the statement himself and it had been
translated by his solicitors. In oral evidence, he said it had been read over
to him on the telephone or perhaps a summary given to him over the phone.
However I note that corrections have been made on the text, and they must have
come from him. He was certainly prepared to adopt it as his evidence at his
interview, the day after he had signed it. In that statement he very clearly
says at paragraph 3 ...he and his friends were fans of the entertainers Khonsandy
and Sayad, some of whose work was banned
in Iran and that 'I had become involved in copying videos of their work and
selling them for a modest profit to friends and acquaintances in the café.'
Again, in paragraph 5 he notes that he was bringing tapes to the café on the
date it was raided 'in order to sell them in the café'. He went on to say that
he had two video recorders at home 'from which I copied tapes for sale.' Two things are abundantly clear in his
statement. The first is that the tapes were of two political entertainers 'some
of whose work was banned' and the second is that these videos were made for
sale. I do not find plausible at all the Appellant, recognising the import of
his statement, would have clearly emphasised the entertainers to the complete
exclusion of the more substantive political content of these tapes as he has
subsequently alleged. Likewise, and at the same time - the interview on the
following day - the Appellant has suddenly remembered he never ever sold
these tapes but that they were distributed free. When confronted with this
inconsistency, the Appellant could only say it was an error of translation. I
have considered this. I do not see how an error of translation could have
occurred in three different places in a statement that was, by the Appellant's
own admission, drafted by himself in Farsi. Nor can this account for the focus
on the entertainers to the exclusion of all other subject matter."
[9] The
corrections referred to by the adjudicator occurred at paragraph 14 of the
statement and related to what the petitioner did after arriving in the United
Kingdom. As typed, the statement indicated
that he spoke to a friend who "was in" Dover.
As corrected, the statement read that that friend "came to" Dover.
Nothing of significance seems to have turned on the matter of whether the
friend went to Dover to speak to
the petitioner or was already in Dover.
The need for the correction was, nonetheless it seems, identified and the
correction made.
[10] At paragraph 33 of his determination, the adjudicator said:
" The appellant
has stated he was not a member of any political organisation or activity. He
claims he was, nonetheless, prepared to risk himself and all dear to him in
distributing these videos. It seems to me fundamentally inconsistent that a man
would have no more specific a political agenda than to encourage democracy when
he was inviting the most serious repercussions from the regime on a daily
basis. I have heard nothing from the Appellant that would lead me to believe he
actually has a strongly developed political consciousness or any political aim,
programme or agenda. I find this lack of political acumen and aim inconsistent,
therefore, with the risk inherent in distributing seditious videos. I find it
consistent, however, with the situation first described by the Appellant in
copying and selling satirical comedy video tapes."
[11] Another concern of the adjudicator's was the petitioner's
account of his journey from Iran
to the United Kingdom.
The first difficulty arose from the fact that in his statement, the petitioner
said that the raid on his café was on 9 or 10 August and that he and his family
had left Iran
on 16 or 17 August. Thereafter, on the adjudicator's findings, the petitioner
consistently maintained that they had left on 16 August. At his screening interview on 30 August, he
had though said that they had left on 11 August.
[12] At paragraph 37 of his determination, the adjudicator explains
his concern that, in short, the petitioner's account of a journey starting on
11 August was not plausible as that would not have given time to get together
the requisite funds and make the necessary arrangements, assuming that the
decision to leave was, as the petitioner alleged, prompted by a raid on his
café at the time he said it was raided.
[13] Moreover, the adjudicator was concerned that on the
petitioner's account of the journey, assuming a start date of 16 (or
17) August, he simply could not have reached the United
Kingdom by 29 August. The adjudicator comments:
"what is not
noted is the distances involved. I have looked at an atlas and measured out
roughly the distances. From Tehran to Tabriz
is approximately 650 kilometres. It is some 120 kilometres on to Khvoy. ..........the
nearest Turkish border is some 50 kilometres beyond that for a total of
something like 820 kilometres by bus and minibus...........That would appear to be
approximately 1600 kilometres across the entire width of the country."
[14] He concludes that if the petitioner left on the 16th
he cannot have been in England
on the 29th. He adds that a
better estimate of the journey would be that it took nineteen days.
[15] I also note that, at paragraph 22, the adjudicator expressed
concern about some translations that had been provided of some of the documents
that were put before him. They were, according to the adjudicator "inadequate
and defective". He drew attention to the failure to identify the chronology of
the documents, errors in the translation of dates, and the translations
amounting in two places to précis rather than giving full details. I note,
however, that the précis concerned did not alter the sense of what is written.
Submissions for the Petitioner
[16] For the petitioner, Mr Caskie referred to the Immigration and
Asylum Act 1999 Sch 4 para 22 and the Immigration and Asylum Appeals
(Procedure) Rules 2000, Rule 18.
The test for the IAT had not been whether or not the adjudicator had erred in
law although in this case, the adjudicator had in fact done so. His decision
was irrational, suffered from procedural irregularity and he had made a mistake
about a material fact. The appeal to the IAT had a real prospect of success
because there was proper foundation for the petitioner feeling dissatisfied
with the outcome of his appeal to the adjudicator.
[17] His submission as it developed was, however, that the test was
not whether the petitioner's appeal would succeed but whether it was
arguable. Whilst he was not saying that
all the negative findings made by the adjudicator were not open to him, there
was enough by way of wrong conclusion on his part as to call into question his
overall conclusion. The appeal was, accordingly, arguable and leave to appeal
should have been granted.
[18] In the course of his
submission as to the applicable principles, he referred to: R(Iran) and others v Secretary of State for Home Dept [2006] EWCA Civ 353, HK v Secretary of State for Home Department [2006] EWCA Civ 1037, and
Hamden v Secretary of State for Home
Dept [2006] CSIH 57.
[19] Mr Caskie relied specifically on four matters. Firstly, he
submitted that the adjudicator was wrong to have regarded the petitioner's
statement as not showing that the tapes had a substantive political content. He
should have inferred from the statement that they did. He referred in particular to paragraphs 3, 7
and 16 of the statement in support of that submission.
[20] Secondly, he submitted that where, after "Likewise." in
paragraph 31 of his determination, the adjudicator had concluded that he could
not see how an error about whether the tapes were sold or distributed free of
charge could have been made three times, he was wrong. He should have taken
account of difficulties that there had been with interpretation as set out at
paragraph 22. Mr Caskie added, however,
that he was not saying that the IAT would necessarily on appeal, have come to a
different conclusion.
[21] Thirdly, Mr Caskie submitted under reference to paragraph 33
that in saying that the petitioner's actions were inconsistent with his account
of political awareness, the adjudicator erred because he left out of account
that in his statement, the petitioner had said that he was a fan of the two
entertainers in the video tapes, fan being a word that was derived from "fanatic".
[22] Fourthly, Mr Caskie submitted that there had been procedural
impropriety in that the adjudicator had consulted an atlas after the hearing.
The impropriety was comparable to that that had been found to have occurred in
the case of Singh v Secretary of State for the Home Department 2002
SLT 73. He did not dispute the distances stated by the adjudicator; indeed, he
accepted that they were accurate. They would not have been disputed at the
hearing had they been referred to at that stage. The adjudicator should not, however, have
ingathered evidence after the hearing. There was unfairness in that the
petitioner did not have the opportunity to seek to explain his account of the
journey in the light of the distances to which the adjudicator refers.
[23] In his initial submission, Mr Caskie made no reference at all
to the grounds of appeal that were before the IAT in support of the application
for leave notwithstanding the terms of rule 18(6), to which I refer below. In
response to Miss Carmichael, he submitted that a liberal approach should
be taken to the grounds. He noted that she accepted that his first argument was
foreshadowed in those grounds and submitted that his third argument should also
be regarded as having been foreshadowed (by the fourth ground of appeal).
Otherwise, he did not suggest that his arguments had been foreshadowed by them
but made a short and general submission that they were obvious points that
should have led the IAT to grant leave, particularly that relating to
procedural irregularity.
[24] I note in passing that the arguments advanced on behalf of the
petitioner amounted to a small fraction of those set out in the lengthy (48
page) petition that was presented in this case and to which Mr Caskie made no
reference at all in the course of his submissions, save for making a motion
that the plea in law be sustained. That plea was to the effect that the IAT had
acted unreasonably et separatism
erred in law in refusing the petitioner's application for leave to appeal and
its decision should accordingly be reduced.
Submissions for the Respondent
[25] On behalf of the respondent, Miss Carmichael drew attention to
the terms of Rule 18(1) and (7) and took issue with Mr Caskie's assertion that
all that was required for leave to appeal to be granted was that there was an
arguable case . On the contrary, there required to be a real prospect of
success and the IAT had not erred in concluding that no such prospects existed.
[26] She also founded on the terms of rule 18(6). The IAT was not
obliged to consider any grounds not contained in the application for leave.
Whilst recognising that there were cases where the Tribunal had an obligation
to go beyond the stated grounds and consider whether there was an obvious
Convention point which has strong prospects of success if argued or whether a
question was raised that was crying out for an answer (R v Secretary of State for
the Home Department ex parte Robinson 1998 QB 929; Parminder Singh v Secretary
of State for the Home Department 10 July 1998 unrepd (Lord Penrose); Mutas Elabas v Secretary of State for the Home Deparment unrepd OH ( Lord Reed) 2
July 2004), this was not such a case.
Only the first of the arguments advanced on behalf of the petitioner had
been covered by the grounds of appeal attached to the application for leave to
appeal.
[27] Regarding that first ground, Miss Carmichael submitted that if
the statement was read properly, it was plain that no proper criticism could be
levelled at the adjudicator for the approach he took. There was nothing in the
statement to indicate that the tapes had a political content. It only said that
they were banned and were the work of entertainers. Paragraph 7 of the
statement was not a reference to the tapes that the petitioner had been
distributing. Regarding paragraph 16,
even if it was correct that being involved with distribution of the banned
tapes was criminal, that did not mean that the tapes had political content.
Further, regarding the narrative in paragraphs 5 and 6 whilst it indicated that
the authorities had an interest in the video recorders used by the petitioner,
it did not show that the tapes had any political content.
[28] Regarding the petitioner's second argument, it was not foreshadowed
in the grounds of appeal and did not concern an obvious Convention point. The
petitioner was asking for it to be considered that there may have been three
separate mistranslations. He was asking the IAT to speculate that there may
have been an error in reading the statement back to the petitioner yet the
reference to sale occurred three times and there was a reference to making a
profit. Further, sufficient care had been taken to achieve the correction to
which I have already referred. Nor was
any inference to be drawn from the fact that the adjudicator had voiced some
criticisms of the translation of certain documents that had been carried out
(see paragraph 22 of the adjudicator's determination). There was no suggestion
that the same interpreter had been involved and even as regards those
difficulties, they amounted to excessive précis and lack of detailed
translation which was not what was being suggested by the petitioner in
relation to the references to sale and making a profit.
[29] Regarding the third argument, Miss Carmichael again noted that
it was not foreshadowed in the grounds of appeal nor was it an obvious
Convention point or one that cried out for an answer. That the petitioner said
he was a fan of the entertainers did not indicate political content to the
tapes. He said it in a context which simply showed that he liked them.
[30] Regarding the fourth ground of appeal, it too was not
foreshadowed in the grounds of appeal, was not an obvious Convention point and
did not jump off the page as being something crying out for an answer. Singh turned on its own facts but, in
any event, might be thought not to be consistent with what was said in Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173. The discussion in Mohammed Ali Majead v
Secretary of State for the Home Department unrepd 16 May 2006 was also relevant. It was not
obviously unfair for the adjudicator to have consulted the atlas and it did not
give rise to unfairness in his decision making. However, even before one got to
the stage of considering the days of journey that were factored in when the
distances noted from the atlas were accounted for, there was a problem. That
was that even only allowing for the days specified in the petitioner's
statement and giving him the benefit of 3 days having been spent in Istanbul
rather than 4, he could not have left on 16 August and arrived in the UK
on 29 August.
[31] In all the circumstances, the petition should be refused.
Relevant Law
[32] Paragraph 22 of Schedule 4 to the Immigration and Asylum Act
1999 applies to this case. It provided:
"22-(1) Subject
to any requirement of rules made under paragraph 3 as to leave to appeal, any
party to an appeal, other than an appeal under section 71, to an adjudicator
may, if dissatisfied with his determination, appeal to the Immigration Appeal
Tribunal."
[33] Rule 18 of the Immigration
and Asylum Appeals (Procedure) Rules 2000 also applies. It made provision
for the application for and granting of leave to appeal to the IAT. Its
provisions included:
" (6) The
Tribunal shall not be required to consider any grounds other than those
included in that application.
(7) 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."
[34] Despite the terms of rule 18(6), it is evident that there may
be circumstances where the IAT is obliged to grant leave on the basis of a
ground of appeal that is not contained in the application but they are limited.
In particular, they are limited to those where there is: "...readily discernible
an obvious point of Convention law which favours the applicant."(Ex parte Robinson per Lord Woolf MR at
p. 945)
on the perhaps equally obvious
basis that if the IAT does not do so then there will be a risk of the United
Kingdom breaching its Convention
obligations. However, the point must be one which, as Lord Woolf put it:
" ...has a strong
prospect of success if it is argued. Nothing less will do." (at p. 946)
[35] They possibly also extend to circumstances where the
adjudicator has made an obvious error of fact (R v Secretary of State for
the Home Department Ex parte Kolcak [2001] Imm A R 666]. However, it is plain that
the point requires to be a clear and obvious one before it can be said that it
should, absent the existence of a ground of appeal referring to it, have caused
the IAT to grant leave. In the case of Parminder Singh, Lord Penrose remarked:
" .....it is clear
that there is and can be no duty to pursue each and every hypothesis that could
be postulated in the search for possible grounds for support of an appeal which
may have escaped the notice of the appellant's advisers...............
.............................
in considering
whether the IAT has erred in relation to matters of fact, or to inferences
properly to be drawn from facts and circumstances, one is concerned only with
the obvious, with questions that cry out for answer."
[36] I bear in mind also the discussion in the judgment of Lord
Justice Schiemann in the case of Maheshwaran,
particularly where at paragraphs 2 to 6 he stresses that in a case such as the
present one, the burden of proof is on the asylum claimant, that whether or not
he is to be believed will frequently be very important and that where a party
makes inconsistent statements which are before the decision-maker he "manifestly
has a forensic problem". As regards the latter, Lord Justice Schiemann does not
envisage that the decision-maker will necessarily intervene if it appears that
there is an inconsistency; at paragraph 5, he states that where that occurs:
"Usually the
tribunal, particularly if the party is represented, will remain silent and see
how the case unfolds."
[37] Earlier, at paragraph 3, he had commented:
"Adjudicators
will in general rightly be cautious about intervening lest it be said that they
have leapt into the forensic arena and lest an appearance of bias is given."
and he allowed, in that same
paragraph, for the possibility that after having reserved judgment:
"Points will
sometimes assume a greater importance than they appeared to have before the
hearing began or in its earlier stages."
[38] Then generally as regards the requirements of fairness, he
stated at paragraph 6:
"Whether a particular
course is consistent with fairness is essentially an intuitive Judgment which
is to be made in the light of all the circumstances of particular case...".
[39] Lord Justice Schiemann's discussion appears to be of particular
relevance to the last of the arguments advanced on behalf of the petitioner.
Discussion
[40] I am readily satisfied that
there is no merit in this application.
[41] It seems logical to deal firstly with the matter of whether any
of the arguments advanced before me could be regarded as having been before the
IAT. I agree with Miss Carmichael that only the first argument can be so
regarded. On no view could the fourth ground of appeal, relied on by Mr Caskie
as relating to what was his third argument, be so regarded. The complaint in
the fourth ground of appeal is that the adjudicator failed, in considering at
his paragraph 33 whether the petitioner did have a political agenda, to take
into account his oral evidence whereas the argument put by Mr Caskie was
restricted to an alleged failure to take account of what was contained in the
petitioner's written statement. Mr Caskie placed no reliance on the
petitioner's oral evidence.
[42] Turning then to the question of whether any or all of the
petitioner's second, third and fourth arguments ought nonetheless to have
occurred to the IAT and to have caused it to grant leave, I am not persuaded
that they fall into that category. None
of them concern Convention matters. None of them concern obvious errors of
fact. None of them were arguments that had, on the face of it, strong prospects
of success.
[43] Turning then to the petitioner's first argument, it seems to me
to be without foundation and thus clearly cannot be said to have a real
prospect of success. The respondent's analysis is a fair one. Paragraph 3 does
not give rise to the inference that the tapes had political content. I do not
see that the reader is driven to drawing such an inference from paragraphs 5,
6, 7 and 16, as was suggested. Paragraphs 5 and 6 make no reference to the
authorities having any knowledge of what was on the tapes; only their interest
in the video recorders is referred to. The tapes referred to in paragraph 7 are
different tapes, unspecified banned tapes held by other people. The reference
to criminal activity in paragraph 16 does not refer to any political activity
or to any political content in the tapes that the petitioner was
distributing.
[44] Given the view that I have indicated that I take of the
remaining three arguments advanced, namely that they were not covered by the
grounds of appeal submitted with the application for leave and that they are
not within that limited category of grounds which should, nonetheless, have
persuaded the IAT to grant leave, the rejection of the petitioner's first argument
means that the petition falls to be dismissed.
[45] I would, for completeness, comment as regards the other
arguments advanced as follows.
[46] Regarding the second argument, the respondent was right, in my
view, to point to the fact that the adjudicator had founded on the fact that
the reference to the tapes being sold occurred not just once but three times.
That was where the first reference was not a simple reference to sale but had
the added information that the same had been for a "modest profit". That is not something which falls to be
explained away by reference to the sort of difficulties with translations that
the adjudicator had noticed, from paragraph 22, that some other interpreter had
had with some other documents. That is not a matter of too much précis or lack
of detail. It would have amounted to the insertion of some quite independent fresh
detail by the interpreter in the course of translation. In short, it would have
been a work of fiction emanating from the translator's hand and there is no
suggestion at all that, whatever the difficulties with the other interpreter,
that was something that had happened before.
Further it was in circumstances where the petitioner had evidently
caused a correction of an apparently unimportant detail about his friend going
to Dover to speak to him rather
than already being there. If such a correction was made in the case of a single
small error then if the references to sale and profit were wrong it seems
eminently reasonable to have expected that they too would have been corrected.
[47] As regards the third argument, it appears to me to be quite
without merit. I do not see that the fact that the petitioner described himself
in his statement as being a fan of the two entertainers referred to should have
led the adjudicator to conclude that he had a political agenda and political
acumen, which was what Mr Caskie seemed to be suggesting. The submission may have been driven by the
root of the word "fan" being "fanatic" but even if it were to be assumed that
the petitioner was fanatical in his enthusiasm for these entertainers, I do not
see that that gives rise to any inference of there being political content to
such fanaticism.
[48] Turning to the first argument, I note firstly that it relates to
the adjudicator having referred to distances between certain places as can be
estimated from looking at an atlas. The distances not having been referred to
in evidence at the hearing, so the petitioner's submission goes, the evidence
of them should not have been gathered after the hearing. The petitioner
suggested that Singh v Secretary of State for the Home Department
was authority for that proposition. In my view, it is not. The judge, Lord
Dawson, did not hold that the adjudicator was not entitled to look at an atlas
after the hearing. What he found was that on the facts and circumstances of
that case (which are clearly distinguishable from those of the present case),
having done so, it was not fair to have refrained from giving the petitioner an
opportunity to explain the apparent discrepancy that arose when he did so. That said, had Lord Dawson been referred to
the case of Maheshwaran, it may well
be that he would not have decided as he did.
[49] Facts of geography are within judicial knowledge and I am not
persuaded that it was not open to the adjudicator in this case whether by
reference to an atlas or otherwise , to rely on the geographical distances
involved in the journey described by the petitioner when considering his
decision after having reserved judgment. As Lord Justice Schiemann
commented in Maheshwaran, it may only
be at that point that matters which did not appear as important at the hearing
assume importance to the decision maker. Further, I cannot see that there is
anything about the facts and circumstances of this case which obliged the
adjudicator to raise the matter of the distances involved with the petitioner. The circumstances are such that any
explanation given by the petitioner directed to accommodating those distances
would inevitably have involved inconsistency with the account already given,
something which would have only emphasised that, to borrow Lord Justice
Schiemann's terminology, he had "manifestly ...a forensic problem". In fairness
to Mr Caskie, it did rather seem that that was something which, as his
submission progressed, he recognised.
Disposal
[50] I am, accordingly, not satisfied that the petitioner has made
out any case for interfering with the decision of the IAT to refuse leave to
appeal and I will pronounce an interlocutor dismissing the petition.
