EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord OsborneLord CarlowayLord Mackay of Drumadoon
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[2009] CSIH 50XA180/06
OPINION OF THE COURT
delivered by LORD OSBORNE
in application for leave to appeal against a decision of an Immigration Judge of the Asylum and Immigration Tribunal under Section 103B of the Nationality, Immigration and Asylum Act 2002
by
AB
Appellant;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
_______
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Alt: Webster; C Mullin, Solicitor to the Advocate General for Scotland
17 June 2009
The background circumstances
[1] This is an application for leave to appeal against a decision of the Asylum and Immigration Tribunal, dated 28 July 2006, at the instance of the appellant, who is a citizen of Iran, who was born on 12 September 1971. The appellant claims to have entered the United Kingdom illegally on 1 February 2005 and he sought asylum the following day. An immigration officer's interview was conducted with him on 2 February 2005; thereafter screening forms were completed on 4 February 2005. Subsequently the appellant was interviewed on 7 March 2005. On 4 April 2005 the respondent decided that the appellant had not established a well-founded fear of persecution and that he did not qualify for asylum. Further, the respondent also concluded that the appellant's removal from the United Kingdom would not be contrary to the United Kingdom's obligations under the European Convention on Human Rights and Fundamental Freedoms. Thereafter the appellant appealed against those decisions to the Asylum and Immigration Tribunal. That appeal was heard by an Immigration Judge, who dismissed the appeal in a determination promulgated on 1 June 2005. The appellant then sought a reconsideration of that decision pursuant to Section 103(A) of the 2002 Act by a senior Immigration Judge, who determined that the original tribunal did not make a material error of law and that the original determination of the appeal should stand, in a decision promulgated on 3 August 2006. Following upon that determination, the appellant sought permission from the Asylum and Immigration Tribunal to appeal to this Court, but leave was refused in a determination dated 1 September 2006. Against that background the appellant now seeks leave to appeal from this Court in terms of Section 103B(3)(b) of the Nationality, Immigration and Asylum Act 2002, "the 2002 Act".
[2] The appellant's account of the relevant circumstances, as set forth in the various interviews conducted with him, was summarised by the Immigration Judge thus. The appellant explained that he had come to the United Kingdom for the purposes of seeking asylum and that it was "something to do with my father. He was friends with a Jewish man who made a problem for my father who went to prison and was tortured, all my family escaped." The appellant's father had allowed Jewish people to stay in their home and the appellant had allowed people to stay in his home as well. The appellant considered that his life was in danger. His father had been imprisoned in 1997 and 1998, the first time for three weeks and the second time for one and a half months. He had not been charged, but had been released on bail. Thereafter his parents had gone to Canada, where they had been granted refugee status. The appellant had not gone there as there was not enough money for that purpose. The appellant said that, in Iran, people had twice been looking for him and had "left a note saying you have to present yourself at SEPAH Centre, they wanted to find father, I was not in." He explained that the papers referred to had been sent in 1996 and 1997, but that between then and 2002 no one had been looking for him and that he had never been threatened or detained or arrested.
[3] The appellant had elaborated his position in the Asylum Interview, which took place on 7 March 2005. When asked what he feared, he said that "there was a possibility I would be arrested in relation to my father". He stated that he was a Shia Muslim and that he had never been arrested or beaten in Iran because of his religion or political opinions and that he had never belonged to or supported any political party. He said that the reason his father had difficulties was that he had been in contact with a Jewish man who was executed after being accused of spying. While he knew that his father had been in contact with this man, he did not know the extent of his activities. The man concerned had been helping Jewish people to leave Iran for Israel. The appellant said that his father allowed people to stay in their home. That would happen every two or three months.
[4] The appellant went on to say that he had also helped several times by having people to stay in his home. When people stayed with him, it was for three or four days. After his father was released on the second occasion, he did not go home but went into hiding. The appellant said that, at that time, his mother, who had been head of a girls' school, was dismissed and she too went into hiding.
[5] When asked if the authorities had ever attempted to arrest him, he said that they had sent letters to his house, after coming looking for him and he was not there. When his parents had gone into hiding, he had stayed with his grandmother and aunts and uncles, who lived in Tehran. When asked about the letters which had been sent to his house, the appellant said that these documents had been summonses; he found out about this because his cousin, who had been looking after the house, had brought them to him. He also said that the authorities had actually given the summonses to his cousin and each time they had beaten him a few times, but had not taken him away. The summonses had simply indicated that the authorities were looking for him, but did not say what accusation was being made against him.
[6] The appellant stated that he had started working, but had not given his true name to his employer. He said he had been hiding for seven or eight years and had been trying to be very careful to stay at a low profile. He had left Tehran and had lived in Mashid, Isfahan and Shiraz, staying with either relatives or friends. He had not left earlier because he needed funds from his father, or someone else. When asked why he had finally had to leave Iran, the appellant said, "I had to leave, I could not live there like that for ever." He went on to say that, if he were returned, he was sure he would be arrested, imprisoned, or even executed.
Submissions for the appellant
[7] At the outset of his submissions, counsel for the appellant stated that agreement had been reached between the appellant and the respondent relating to certain matters. First, it was agreed that the present hearing should be on the application for leave to appeal and the appeal itself. Second, if the application and appeal were to be allowed, the appropriate order would be for the case to be remitted to the Asylum and Immigration Tribunal for reconsideration de novo. Third, it was agreed that the case was governed by the 2002 Act, as amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. Fourth, it was agreed that, if the Immigration Judge was shown to have erred in law, it followed that the Senior Immigration Judge had also erred in law in having failed to detect an error of law on the part of the Immigration Judge. In these circumstances it was appropriate to concentrate upon the decision of the Immigration Judge.
[8] Looking at the decision of the Immigration Judge, it fell into two parts. The first part dealt with the background to the case and was largely uncontroversial. However, from paragraph 30 onwards to the end of the decision, the Immigration Judge had dealt with the controversial issues. The background was that the appellant and his father had given protection to Jewish persons in Iran. One of these had been executed as an alleged spy. The appellant's father had been detained on two occasions, had been granted bail and had fled with his wife from Iran to Canada.
[9] Counsel next drew our attention to the relevant law. The appellant's challenge to the decision of the Immigration Judge was focused upon his decision that the appellant's account of matters, which was crucial to the determination of the case was not credible in certain respects. It was submitted that in reaching that conclusion, the Immigration Judge had himself erred in law. It was important to appreciate what might amount to an error of law in that context. In this connection counsel drew our attention to H.A. v Secretary of State for the Home Department 2008 S.C. 58, particularly at pages 63-64, paragraphs [15] to [17]. Counsel also relied on Hamden v Secretary of State for the Home Department [2006] CSIH 57, particularly the observations of Lord Carloway, delivering the Opinion of the Court, in paragraphs [11], [15] and [16]. In relation to an assessment of credibility, the position was that one error might taint the whole assessment. That concept was particularly important in the context of the present case. Reliance was also placed on K.B.O. v Secretary of State for the Home Department [2009] CSIH 30, particularly the observations of Lord Reed, delivering the Opinion of the Court in paragraphs [8] to [11].
[10] Turning to consider the decision of the Immigration Judge, the important parts of it were to be found in paragraphs 30-35. In the forefront of the matter in controversy was the credibility of the appellant. In certain respects the Immigration Judge had been prepared to accept the evidence of the appellant, but in relation to the crucial matter of the two documents which the appellant had received from the authorities, the Immigration Judge had not been prepared to make a finding that these documents were summonses, as claimed by the appellant. In paragraph 30 he had stated five reasons for that conclusion. Counsel submitted that these reasons had been stated cumulatively. Reasons (iii) and (v) were criticised in particular. As regards reason (iii) the Immigration Judge observed that, according to the appellant's responses, the documents concerned simply indicated that the authorities had been looking for him, but did not say why. The Immigration Judge stated that, if the documents had been warrants or summonses, they would have stated clearly the offences to which they related. That statement was erroneous in respect that an arrest warrant would not normally state the reason why the warrant had been granted, as appeared from paragraph 5.28 of the Country Information Policy Unit Country Report on Iran. As regards summonses, the Immigration Judge had indulged in speculation and had made use of the outcome of that process.
[11] Turning to the Immigration Judge's reason (v) it was there stated that, if the documents has been summonses, or the authorities had been seriously interested in the appellant, it was to have been expected that his cousin would have been detained, or treated more severely than was claimed to have happened. As regards this reason, counsel submitted that it amounted to mere speculation. If it had been based on some expertise possessed by the Immigration Judge, that should have been made clear in his decision. There was nothing in the evidence to support this part of the Immigration Judge's reasoning.
[12] The reasons (iii) and (v) were central buttresses of the Immigration Judge's evaluation of the credibility of the appellant. It was highly likely that these faulty reasons had coloured the Immigration Judge's conclusion generally on the matter of credibility. That was why reconsideration was now desired and appropriate. The issue of whether there was a well-founded fear of persecution was closely and inferentially related to the two documents considered in paragraph 30 of the decision.
[13] Looking at the remainder of the Immigration Judge's decision in paragraphs 32-35, it was evident that three points had been of importance in his decision making. The first was the matter of the documents delivered for the appellant, which he had described as summonses. The second was the conclusion reached by the Immigration Judge that the appellant's mother had manufactured evidence to the effect that the authorities had told her that they were going to execute her husband and her son. The third point related to the passage of time since the appellant's father had last been detained in 1997/8; it had been concluded that that detention was so long ago that there was little likelihood that the Iranian authorities would any longer have any significant interest in the appellant. Counsel had already dealt with the first of these matters. As regards the second, he contended that the reasoning of the Immigration Judge in paragraph 31 was flawed because the erroneous reasoning in paragraph 30 was closely linked to the reasoning in paragraph 31. Counsel went on to elaborate his submissions relating to the reasoning in paragraph 30. Reasons (i) and (ii) were not as significant as the Immigration Judge had considered them to be. While there were certain variations in what the appellant had said on different occasions, the content of what was said was not necessarily inconsistent. All in all, there was sufficient reason for concern regarding the evaluation in paragraph 30 to require a reconsideration. It was not possible to say that the flaws in the Immigration Judge's consideration could have had no effect on his overall evaluation of the appellant's credibility. Turning to paragraph 31 of the decision, it was clear that, having reached the conclusion that he had as regards the documents delivered by the authorities to the appellant, that conclusion coloured the later approach adopted to the appellant's mother's evidence in paragraph 31. While there was material to entitle the Immigration Judge to conclude as he had done regarding the evidence of the appellant's mother, because the conclusion in paragraph 31 was not one which stood alone, that conclusion had been influenced by the conclusion reached in paragraph 30.
[14] In paragraph 34 of his decision the Immigration Judge had reached a conclusion relating to the extent to which now the appellant might be in jeopardy if returned to Iran. It was submitted that the Immigration Judge's decision in this paragraph was perverse and one which he was not entitled to reach. It was an elaborate construction built upon three pillars. Two of those pillars were flawed, in consequence of which the whole edifice collapsed.
Submissions on behalf of the respondent
[15] Counsel for the respondent moved us to refuse the application for leave and the appeal. He invited the Court to affirm the decision of the Asylum and Immigration Tribunal in terms of Section 103B(4)(a). The decision in question had turned on the credibility of the appellant's evidence relating to the two documents which had been delivered by the authorities and come into his possession. The appellant claimed that these documents indicated a serious and sinister interest on the part of the authorities in the appellant in respect of his own activities. The appellant had sought to portray the documents as summonses, implying that they amounted to allegations against the appellant in respect of his own personal involvement in the activity which had been unacceptable to the authorities. It was therefore necessary to consider carefully the evaluation of the appellant's credibility in relation to those matters undertaken by the Immigration Judge, the results of which were set out in paragraph 30 of his decision. As regards paragraph (i) there undoubtedly were discrepancies in the position of the appellant as expressed at different times in the contents of the notebook recording what the appellant said on 2 February 2005; during the asylum interview on 7 March 2005, and in the statement the appellant presented to the hearing before the Immigration Judge. Counsel went on to draw attention in detail to what the appellant had said about the documents at different times. It was submitted that this particular reason given by the Immigration Judge was sound. Turning to reason (ii), while there was limited force in this point, it was nevertheless a valid position for the Immigration Judge to adopt. Turning to reason (iii) counsel accepted that, in relation to warrants, having regard to the contents of the Country Information and Policy Unit Report on Iran, the Immigration Judge had been in error. As regards a summonses, the same error had not been made, since it could reasonably be inferred that a summons would indicate the reasons why an individual was being taken to Court. As regards reason (iv) no criticism had been levelled at this. Finally, as regards reason (v), it could be seen that this was based upon the shortcomings of the authorities in Iran in relation to respect for human rights, of which the Immigration Judge might legitimately be expected to have some knowledge.
[16] Commenting on the law which was applicable to this case, counsel accepted that the principal decision which was relevant in the circumstances was H.A. v Secretary of State for the Home Department. In paragraph [16] of that decision it was made clear that an Immigration Judge could properly rely upon the benefit of his training and experience in dealing with asylum-seekers from different societies and cultures. In H.G. v Secretary of State for the Home Department [2009] CSIH 25, in paragraph [10] of the opinion of Lord Hodge, that view was affirmed. It was there said that an Immigration Judge might draw on his common sense and his ability, as a practical and informed person, to identify what was and what was not plausible. The same point had been made in L.K. v Secretary of State for the Home Department by Lord Carloway in paragraphs [12] and [13]. Looking at the reasoning in paragraphs (i) to (v) in paragraph 30 of the decision, the Immigration Judge had plainly been relying on his experience and was entitled to do so. If there was any flaw in reason (iii) or (v) the question then was whether that flaw was fatal to the evaluation of credibility as a whole. It was submitted that the five reasons given were not cumulative. Each reason could stand on its own and would be enough to justify the conclusion reached. The decision of the Court of Appeal in H.K. v Secretary of State for the Home Department [2006] EWCA Civ 1037 was instructive in this context. In paragraph 45 of the judgment of the Court delivered by Neuberger L.J., it was said that where a fact finding tribunal had decided to reject evidence for a number of reasons, the mere fact that some of those reasons did not bear analysis did not, of itself, justify an appellate court in setting aside the resulting decision. In such a case, the appellate court had to decide whether it would be just to let the tribunal's decision stand. That question would normally be answered by considering whether one could be tolerably confident that the tribunal's decision would have been the same on the basis of the reasons which survived scrutiny. Looking at the particulars of the present case, reasons (i), (ii) and (iv) were strong. Changes in position such as were highlighted there were strong indications of unreliability. If reasons (iii) and (v) did not pass muster, that did not destroy the Immigration Judge's evaluation of the appellant's credibility and undermine his refusal to make a finding that the documents delivered were summonses.
[17] As regards the Immigration Judge's conclusion in paragraph 31, it had been submitted that it had been tainted by the flaws in the reasoning in paragraph 30. That submission was unsound; there was no express linkage between the conclusions reached in these two paragraphs. The conclusion in paragraph 31 relating to the evidence of the appellant's mother in fact depended upon the soundness of the appellant's own position. Thus that conclusion could stand alone regardless of what might be concluded regarding paragraph 30. The situation here was not similar to that described in paragraph 15 of the Opinion of the Court in Hamden v Secretary of State for the Home Department. Finally turning to the criticisms made of paragraph 32-34 of the Immigration Judge's decision, undoubtedly there had been a substantial passage of time between the significant events affecting the appellant's father and the time at which the position of the appellant had to be considered. That was a perfectly valid consideration. The essence of the expression of fear by the appellant related to his association with his father's activities. In all the circumstances it could not be said that the Immigration Judge's decision was perverse.
The decision
[18] The first of the appellant's attacks upon the decision of the Immigration Judge related to his conclusion in paragraph 30 of his decision that he was not satisfied that the two documents referred to in the appellant's evidence were summonses. In that paragraph, five reasons were given for the Immigration Judge's unwillingness to accept the evidence of the appellant on this point. Reasons (iii) and (v) were the principal objects of the criticism advanced. Thus, in this connection we are dealing with the issue of the Immigration Judge's handling of the matter of the appellant's credibility.
[19] In H.A. v Secretary of State for the Home Department, in delivering the Opinion of the Court, Lord Macfadyen set out the approach which should be followed to such a matter. We can do no better than quote part of what his Lordship said in paragraph [17] of the Opinion:
"The credibility of an asylum-seeker's account is primarily a question of fact, and the determination of that question of fact has been entrusted by Parliament to the immigration judge (Esen, paragraph 21). This Court may not interfere with the immigration judge's decision on a matter of credibility simply because on the evidence it would, if it had been the fact-finder, have come to a different conclusion (Reid, per Lord Clyde, page 41H). But if the immigration judge's decision on credibility discloses an error of law falling within the range identified by Lord Clyde in the passage quoted above from Reid, that error is open to correction by this court. If a decision on credibility is one which depends for its validity on the acceptance of other contradictory facts or inference from such facts, it will be erroneous in point of law if the contradictory position is not supported by any, or sufficient, evidence, or is based on conjecture or speculation (Wani v Secretary of State for the Home Department, para. 24, quoted with approval in H. K., para. 30). A bare assertion of incredibility or implausibility may disclose an error of law; an immigration judge must give reasons for his decisions on credibility and plausibility (Esen, para. 21). In reaching conclusions on credibility and plausibility an immigration judge may draw on his common sense and his ability, as a practical and informed person, to identify what is, and what is not, plausible (Wani, page 883L, quoted with approval in H.K., para. 30, and in Esen, para. 21). Credibility, however, is an issue to be handled with great care and sensitivity to cultural differences (Esen, para. 21), and reliance on inherent improbability may be dangerous or inappropriate where the conduct in question has taken place in a society whose conduct and customs are very different from those in the United Kingdom (H.K., para. 29). There will be cases where actions which may appear implausible if judged by domestic standards may not merit rejection on that ground when considered within the context of the asylum-seeker's social and cultural background (Wani, page 883I, quoted with approval in H.K., para. 30.). An immigration judge's decision on credibility or implausibility may, we conclude, disclose an error of law if, on examination of the reasons given for his decision, it appears either that he has failed to take into account the relevant consideration that the probability of the asylum-seeker's narrative may be affected by its cultural context, or has failed to explain the part played in his decision by consideration of that context, or has based his conclusion on speculation or conjecture."
[20] Adopting the approach desiderated above, we now examine the Immigration Judge's conclusion as to the credibility of the appellant regarding the two documents referred to. In reason (iii), the Immigration Judge said of the appellant:
"He accepted at Q58 that the documents simply said that they were looking for him and did not say why. If the documents had been warrants or summonses they would have said clearly the offences to which they related."
The Iran Country Report of the Country Information and Policy Unit, dated April 2005, at paragraphs 5.27 and 5.28, deals with court documentation; in the first place, summonses, in second place, arrest warrants. In paragraph 5.27 relating to summonses, nothing is said as to whether a summons would or would not have stated the offence to which they related. However, in paragraph 5.28, it is said: "The reason for the issuing of the arrest warrant is not normally stated." Thus what the Immigration Judge said in reason (iii) is, in part, possibly inaccurate. As regards the view of the Immigration Judge concerning the contents of summonses however, we have no reason to consider that his view is other than accurate. Prima facie, it might be thought that a court summons in respect of a criminal matter might be expected to contain, at least, a summary of the allegations which the recipient had to answer. We are of the view that the Immigration Judge's opinion regarding that is one which he was entitled to form upon the basis of his experience of cases such as the present.
[21] Turning to the matter of reason (v), the Immigration Judge expressed the view that:
"If the documents were summonses or the authorities were seriously interested in the appellant I would have expected them to detain his cousin or treat him more severely than is claimed to have happened."
It appears to us that this statement amounts to a judgment as to the probability of violence being administered to the appellant's cousin in the circumstances in which he found himself, beyond that which in fact occurred. While there is no direct evidence relating to that matter, nor indeed could there be, we have reached the conclusion that the Immigration Judge was entitled to form such a view, in the light of his experience and in the light of the extensive material in the Iran Country Report. Accordingly we reject that particular criticism of the Immigration Judge's reasoning.
[22] In the light of the view which we have formed relating to the Immigration Judge's reasoning, the question then arises of the effect which his possible error relating to warrants in reason (iii) may have had, in the context of his whole assessment of credibility. In regard to that, it is appropriate to follow the approach desiderated in H.K. v Secretary of State for the Home Department in paragraph 45 of the judgment of the Court delivered by Neuberger, L.J.. He said:
"In the light of these views as to the reasons the Tribunal gave for rejecting H.K.'s story, I now turn to consider whether that rejection can nonetheless stand. Where a fact-finding tribunal has decided to reject evidence for a number of reasons, the mere fact that some of those reasons do not bear analysis is not, of itself, enough to justify an appellate court setting the decision aside. In such a case, the appellate court has to decide whether it would be just to let the tribunal's decision stand. That question will normally be answered by considering whether one can be tolerably confident that the tribunal's decision would have been the same on the basis of the reasons which have survived its scrutiny. In the present case, as I understood it, both counsel accepted that that was the right test, and that seems to me to be correct."
Following that approach, we are satisfied that the possible error which the Immigration Judge made in relation to warrants in reason (iii) of his assessment cannot be said to fatally undermine his overall evaluation of the appellant's credibility on the relevant matter. It appears to us that the reasons given in the Immigration Judge's evaluation, particularly (i), (ii) and (iv) were powerful considerations. We are more than "tolerably confident" that the Immigration Judge's decision would have been the same if he had not reached the possibly erroneous decision as to the nature and contents of arrest warrants. In all these circumstances we reject the criticisms of the Immigration Judge's evaluation of the appellant's credibility in this regard.
[23] The second main area of criticism of the Immigration Judge's decision was focused upon paragraph 31. In that paragraph, the Immigration Judge dealt with the evidence of the appellant's mother. An important element in her evidence was that she was adamant that she had told the appellant that the authorities, when questioning her, had told her that they were going to "execute my son and my husband". The Immigration Judge proceeded to consider that evidence in relation to the accounts of matters given by the appellant himself. He observed that there was no mention of this serious matter in any of the appellant's accounts. Counsel for the appellant, as we understood it, accepted the force of the point made by the Immigration Judge. His criticism of the overall conclusion reached by him in relation to the mother's evidence was based upon the first two sentences of this paragraph. They were in these terms:
"I regard the appellant's evidence about the summonses as an embellishment which he has added to exaggerate the events which took place prior to his departure. I have come to the same conclusion about the appellant's mother's evidence in relation to the authorities looking for the appellant."
It was said that the errors which it was contended were evident from the Immigration Judge's evaluation of the appellant's own credibility had been carried over into the assessment of the appellant's mother's credibility upon the basis of what was said in those two sentences. We reject this criticism. Leaving aside, for a moment, the fact that we have substantially rejected the criticisms made of the evaluation of credibility of the appellant, we cannot read these sentences as saying anything more than the Immigration Judge had also reached an unfavourable conclusion regarding the appellant's mother's credibility. The first sentence in paragraph 31 seems to us to be no more than a summary of his conclusions in relation to the appellant. So far as the second sentence is concerned, it appears to us that the Immigration Judge is simply saying that he has come to a similar conclusion regarding the appellant's mother's evidence, that is to say, that it was not credible. For these reasons we reject this part of the appellant's criticisms.
[24] The third main submission made by counsel for the appellant in criticism of the Immigration Judge's decision was that it was perverse; one which no reasonable Immigration Judge could have reached in the circumstances. That submission was focused particularly upon paragraphs 33 and 34 of the determination. In paragraph 33, in the appellant's favour, the Immigration Judge concluded that he was satisfied that the appellant did have a subjective fear of being persecuted, if he were returned to Iran. However, he also concluded that that subjective fear arose out of his father's activities, some of which were clearly known to the authorities. These had led to the appellant's father being detained on two occasions. He goes on to conclude that he accepts that the appellant's fear in relation to his father's opinion does amount to an imputed political opinion and that he fears that the authorities would impute to him the opinions of his father, who was thought to be someone who would assist Jews in Iran, to escape. The crux of the matter is to be found in paragraph 34, where the Immigration Judge rightly observes that the appellant's fear of persecution requires to be objectively well-founded. On that matter the Immigration Judge concludes that the appellant's subjective fear is not objectively well-founded for the reason that the interest of the authorities in the appellant was not the result of his own activities, but simply reflected the authorities' interest in the activities of his father. Upon the basis of the evaluation of credibility which the Immigration Judge has made, which we do not consider is open to serious criticism, our conclusion is that he was entitled to reach the view which he did in relation to the basis of the appellant's fear of persecution. We can identify nothing that is perverse or unreasonable in the reasoning of the Immigration Judge in paragraphs 33 and 34 of his decision. Accordingly we reject the submission of the appellant in this regard.
[25] In the whole circumstances, we refuse the appellant's application for leave to appeal.