Scottish Court of Session Decisions

Petitioner: Forrest; Drummond Miller LLP

Respondent: J.N.M. MacGregor; Office of the Solicitor to the Advocate General

24 June 2011

Introduction

[1] The Petitioner was born in December 1977. He is a national of Bangladesh. He entered the United Kingdom on a Visitor's Visa on 1 August 2004. He did not return to Bangladesh on the expiry of the visa in 2004 but became an illegal overstayer. He did not claim asylum until 11 January 2009, after he had been encountered working illegally by immigration officers. He claimed he had left Bangladesh because he and other members of his family were being persecuted by members of a political party called the Awami League (AWL). He maintained that he was a member of the Bangladesh National Party (BNP). The application was refused by the Respondent on 3 December 2009. The Petitioner appealed to an Immigration Judge. The appeal was dismissed on 10 March 2010. The Immigration Judge did not consider the Petitioner's account to be credible. He found the Petitioner to be "vague and inconsistent in certain important areas of his account". In relation to the visa application he concluded that the Petitioner was duplicitous when applying for his visa. He found the Petitioner's explanations for the delay of five years before claiming asylum to be lacking in credibility. He concluded that the Petitioner left Bangladesh for reasons other than being in need of international protection. On 13 April 2010 the Petitioner was refused permission to appeal to a first tier tribunal. His appeal rights became exhausted on 27 April 2010.

[2] By letter dated 21 May 2010 agents acting for the Petitioner submitted fresh representations to the Respondent. The letter indicated that the Petitioner's brother-in-law had been assaulted in Bangladesh "by our client's political rivals in a most recent incident on 20 April 2010". It was submitted that if the Petitioner returned to Bangladesh he would not be safe. With the letter there were enclosed, inter alia, (i) a statement from the Petitioner dated 6 May 2010; (ii) a copy of what bore to be a translation of a First Information Report to the "officer-in-charge Gandaria P.S., DMP., Dhaka." filed by M stating that he is an "active member of the BNP at Ghandaia Thana Committee" and complaining that on 20 April 2010 persons came to his house asking for the Petitioner and a relative, beat M and broke some furniture; (iii) what purported to be a letter from the Petitioner's mother advising him not to come to Bangladesh because he would be in danger; (iv) a letter from Dhaka Medical College dated 29 April 2010. By letter dated 8 June 2010 the Respondent rejected those further submissions and determined that they did not amount to a fresh claim.

[3] On 9 September 2010 the Respondent issued Removal Directions in respect of the Petitioner. The Petitioner was detained and sent to Colnbrook Immigration Removal Centre. By letter of the same date the Petitioner's solicitors wrote to the Respondent in the following terms:

"We are aware that you have detained [the Petitioner] and are awaiting fresh evidence from us. Please find enclosed 15 pages of evidence with translations. We have the originals on file and will forward these to you once you have confirmed where these should be sent.

We trust this information is enough to stop the removal directions which are set for the 15^th September 2010. We would be grateful if you acknowledge safe receipt of these documents."

In fact sixteen pages were enclosed with that letter. Seven pages were not translated into English and there was no explanation what they were. The remaining pages comprised English translations of (i) an affidavit from K, a brother-in-law of the Petitioner, which claimed the Petitioner would be in danger from the Awami league if he returned to Bangladesh; (ii) a "warret of arrest" dated 30 July 2010; (ii) a "warret of arrest" dated 20 November 2003 (iii) a First Information Report dated 12 November 2003; (iv) an order sheet for M dated 20 November 2003; and (v) an order sheet for M dated 30 July 2010. By decision letter dated 14 September 2010 the Respondent rejected the submissions made in the Petitioner's solicitors' letter of 9 September 2010. The Petitioner raised the present proceedings seeking judicial review of that decision and of the removal directions. Following the commencement of these proceedings the Petitioner produced two further documents. One was a letter from Dhaka Medical College Hospital dated 3 August 2010, bearing to be signed by a doctor, in the following terms:

" TO WHOM IT MA CONCERN

This is to certify that [M] ... came today 31.07.10 at about 6.45 P.M. at our Dhaka Medical College Hospital with serious injured in various part of his body. He was beaten. During through cheek-up we found he is injured from every corner. His life is serious in this time.

I wish his every success in life."

The other was a letter dated 7 August 2010, bearing to be from his mother, urging him not to come to Bangladesh because if he did he would be killed by supporters of the Awami League.

[4] The Respondent issued a second decision letter dated 10 December 2010. She rejected the Petitioner's further submissions of 9 September 2010 and the documents subsequently lodged, and determined that they did not amount to a fresh claim. The decision letter narrated the history of the Petitioner's claim for asylum. It accurately set out - under reference to Rule 353, WM(DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, R(YH) v Secretary of State for the Home Department [2010] EWCA Civ 116, R(AK Sri Lanka) v Secretary of State for the Home Department [2010] 1 WLR 855 - the test which the Respondent required to apply in determining whether the Petitioner's submissions amounted to a fresh claim. It referred to findings in fact which had been made by the Immigration Judge and noted that he had accepted very little of the factual basis of the Petitioner's account. It noted that it was for an applicant to show that documents on which he relied were ones upon which reliance or weight should be placed; and that there was no explanation of the relevance of the documents or how they had been acquired by the Petitioner. It stated that provenance was an extremely important factor because it was clear from the Country Information Report for Bangladesh that it is easy to obtain fraudulent documents in Bangladesh. The decision letter commented that arrest warrants are not generally available to members of the public; that the Petitioner had never previously mentioned that he was the subject of an arrest warrant in 2003 or that he was wanted for an offence under the Arms Act; and that he had not explained how or when he became aware of that warrant. The letter identified other matters which cried out for explanation: according to the documents the Petitioner was a wanted man who had absconded in November 2003 but there was no suggestion he was in hiding between then and his departure from Bangladesh - using his own passport - in May 2004. According to the documents, M was also accused of offences under the Arms Act in 2003, and in the order sheet of 20 August 2003 he was alleged to be an absconder. Notwithstanding that, he did not appear to have been in hiding since 2003 and in April 2010 he had attended at a police station to register a First Information Report. In relation to the purported official documents the letter continued:

"...(W)hen taking all the factors into account, including his previous lack of credibility, the fact that documents of this nature are frequently forged in Bangladesh, that arrest warrants are not usually given to members of the public, the fact that no explanation has been given about how your client obtained them and the fact that some are not entirely consistent with his previous evidence (or at least not without some explanation) there is no reasonable prospect of an Immigration Judge concluding that they would give rise to a reasonable likelihood of either persecution or ill treatment contrary to Article 3 of the ECHR".

In relation to the other materials which had been submitted the letter observed:

"In light of the difficulties described above there is similarly no realistic prospect of an Immigration Judge placing weight on the statement of [K] or your client's mother. The deponents of these statements would never be capable of being tested in cross examination and would fall to be assessed as part of the evidence. Given their timing, your client's previous general lack of credibility and the reference in the objective material...that it is normal to provide incorrect information to a third party in order to assist a 'co-national or brother' to immigrate to a so-called rich country it is not considered that these are documents upon which reliance can be placed. Similarly, the document dated 3 August 2010, the purpose of which is entirely unclear and unexplained, is not one which there is a realistic prospect of an Immigration Judge placing weight upon."

It went on to conclude:

"Accordingly, for all the reasons given there is no realistic prospect of an Immigration Judge concluding that the representations that you made on behalf of your client in your letter of 9 September 2010 ...would give rise to a real risk of persecution or ill treatment contrary to Article 3 of the ECHR."

[5] The Petitioner amended the Petition to seek judicial review of the decision of 10 December 2010. The matter came before me for a First Hearing.

The Secretary of State's task

[6] Rule 353 of the Immigration Rules provides that after a claim has been refused and any appeal is no longer pending, the decision maker will consider further representations and , if rejected, will then determine if they amount to a fresh claim. The rule states:

"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."

[7] In the present case parties were at one that the Respondent had rejected the Petitioner's claim; and that whether the submissions amounted to a fresh claim turned on whether the Respondent considered part (ii) of the Rule was satisfied.

[8] In WM (DRC) v Secretary of State for the Home Department Buxton LJ explained the task of the Secretary of State where fresh submissions are made:

"6 ... He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not 'significantly different' the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.

7. The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v SSHD [1987] AC 514 at p 531F."

The Court's task

[9] Lord Justice Buxton went on to explain the task of the Court:

"8. There is no provision for appeal from a decision of the Secretary of State as to the existence of a fresh claim. The court has therefore been engaged only through the medium of judicial review. The content of such an application was first addressed by this court in R v SSHD ex p Onibiyo [1996] QB 768. The applicant in that case argued that whether or not a fresh claim for asylum had been made was a matter of precedent fact, on the same level as for instance a decision on whether an applicant was an illegal entrant, and thus to be decided, in case of dispute, by the court. The Secretary of State argued that the decision on whether a fresh claim had been made was for him, to be challenged only on grounds of irrationality. Sir Thomas Bingham MR, giving the judgment of the court, inclined tentatively and 'with some misgivings' to the latter view, concluding therefore that the decisions of the Secretary of State were challengeable only on 'Wednesbury' grounds.

9. Commentators for a time regarded that conclusion as still open for debate, but in truth no other answer could have been given to the question posited by counsel in Onibiyo. As the Secretary of State rightly submitted, his conclusion as to whether there was a fresh claim was not a fact, nor precedent to any other decision, but was the decision itself. The court could not take that decision out of the hands of the decision-maker. It can only do that when it is exercising an appellate role. With appeal excluded, the decision remains that of the Secretary of State, subject only to review and not appeal. And in any event, whatever the logic of it all, the issue to which Bingham MR gave only a tentative answer in Onibiyo arose for decision before this court in Cakabay v SSHD [1999] Imm AR 176. There is no escaping from the ratio of that case that, as encapsulated at the end of the judgment of Peter Gibson LJ at p195, the determination of the Secretary of State is only capable of being impugned on Wednesbury grounds.

10. That, however, is by no means the end of the matter. Although the issue was not pursued in detail, the court in Cakabay recognised, at p191, that in any asylum case anxious scrutiny must enter the equation: see §7 above. Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

11. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

[10] Lord Justice Buxton's guidance in WM(DRC) as to the role of the court was approved and adopted by the Second Division in FO, Petitioner 2010 SLT 1087 at paragraphs [22] and [23]. In KD v The Secretary of State for the Home Department [2011] CSIH 20 at paragraph [7] an Extra Division indicated that paragraphs [21] to [23] of FO, Petitioner contained "a clear and binding statement of the procedure that generally ought to be followed". In England the Court of Appeal has reaffirmed the correctness of the guidance in WM(DRC): see R(MN)(Tanzania) v Secretary of State for the Home Department [2011] 2 All ER 772 at paragraphs 13 to 16 and R(AA) v Secretary of State for the Home Department [2011] EWCA Civ 443 at paragraph 12.

The Petitioner's contentions

[11] Mr Forrest proceeded on the basis that the decision letters of 9 September 2010 and 10 December 2010 should be read together as one decision, rather than as separate decisions. He sought reduction of them both. He argued that the decision was Wednesbury unreasonable.

[12] His first, and principal, contention was that, while the Respondent had identified and articulated the correct test, she had not gone on to apply it. Rather, he argued, she had asked herself whether the new claim was a good one which should succeed instead of asking herself whether there was a realistic prospect of success before an Immigration Judge. Second, she had not given the matter anxious scrutiny. Third, while she had been fully entitled to have regard to the adverse findings of credibility made against the Petitioner by the Immigration Judge, she ought to have attached less weight to them because the new documents did not emanate from the Petitioner. Fourth, he contended that the Respondent had been irrational in her consideration of the documents which had been produced. While she had been entitled to consider the provenance and authenticity of the documents, and to have regard to up to date objective evidence of problems of widespread falsification of official documents in Bangladesh, the objective evidence she relied on was, he said, not up to date.

The Respondent's contentions

[13] In response Mr MacGregor agreed that the two decision letters required to be approached as one decision. He submitted that the Respondent had not only properly identified and articulated the correct test, but had also correctly applied it. She had considered whether taking the new information together with the previous material there was a realistic prospect of success before an Immigration Judge. She had applied the necessary anxious scrutiny in considering all the material placed before her. Her decision could only be interfered with if it was Wednesbury unreasonable. It could not be said that that was the case.

Decision

[14] I have given the Petitioner's challenge the anxious scrutiny which I require to give to it. Notwithstanding that, I am not persuaded that the Respondent erred in any of the respects suggested by Mr Forrest.

[15] In my opinion it is clear from the terms of the decision letters that the Respondent not only identified the correct test, but also that she properly applied it.

[16] The Respondent was entitled to have regard to the adverse credibility findings which had been made by the Immigration Judge. In doing so she was careful to recognise that, at least on the face of it, documents which the Petitioner submitted bore to be official documents emanating from third parties. A problem for the Petitioner was that those documents were very hard to square with his previous account and actions. Another was that it was very difficult to reconcile M's apparent status as an absconder from justice with his attending a police station to file a First Information Report in April 2010. Further difficulties were that some of the documents - in particular the warrants of arrest - were not documents which would be expected to come into the possession of the persons whose arrest was sought: and that some of the documents go back to 2003 but were first mentioned by the Petitioner in 2010. None of these troublesome matters were explained. The background was that false documents were very frequently and easily obtained in Bangladesh. In my view, in the whole circumstances, it was open to the Respondent to have regard to the adverse credibility findings and to give them the weight that she did.

[17] I reject Mr Forrest's submission that the Respondent erred in placing reliance on "outdated" country information relating to Bangladesh. The material relied upon was contained in the Country of Origin Information Report for Bangladesh dated 20 August 2010 (7/1 of Process) and the Respondent was entitled to treat it as representing the current position.

[18] I am wholly unpersuaded that in deciding as she did the Respondent acted irrationally. On the contrary, in my opinion the decision was one that she was fully entitled to reach on the material put before her. She took proper account of all the factors she required to and gave them anxious scrutiny. Her decision was lawful. None of the challenges to it advanced by Mr Forrest are well founded.

Disposal

[19] I shall sustain the first plea- in-law for the Respondent, repel the plea-in-law for the Petitioner, and refuse the Petition. I reserve meantime all questions of expenses.