Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 140
P506/12	OPINION OF LORD JONES in the cause AD Petitioner; for Judicial Review ________________

Petitioner: Forrest; Drummond Miller LLP

Respondent: Davidson; Office of the Advocate General

31 August 2012

Background

[1] The petitioner is a national of Guinea. He entered the United Kingdom illegally in March 2007 and claimed asylum. That claim was refused by the Secretary of State for the Home Department ("the SSHD") on 29 March 2007, and the petitioner was served with notices informing him of the intention to remove him from the United Kingdom. The petitioner then appealed to the Asylum and Immigration Tribunal, under the provisions of the Nationality, Immigration and Asylum Act 2002. His appeal was dismissed on 31 May 2007 and, on 3 July 2007, a senior immigration judge refused the petitioner's request for reconsideration of the 31 May determination. The petitioner's rights of appeal were exhausted as of 12 July 2007.

The findings of the immigration judge

[2] The basis of the petitioner's claim, as recorded by the immigration judge, was as follows: "The appellant has a well founded fear of persecution from the authorities if returned to Guinea by reason of his imputed political opinion." Failing success on that ground, the petitioner sought humanitarian protection, or protection under articles 2 and 3 of the ECHR.

[3] The immigration judge summarised the petitioner's case before him in the following terms:

"a) His name, nationality and date of birth are as given. He was from Conakry, the capital.

b) There were a lot of problems in Guinea. There was no work, no electricity and no running water.

c) As a result, there was a general strike on 22 January 2007. He was one of numerous people at the demonstration. The demonstration was stopped at 'The 8^th of November Bridge' by the security forces who opened fire and teargassed the crowd indiscriminately.

d) In the confusion, the appellant was one of many arrested and taken to Central Police Station by lorry. En route, some soldiers put out their cigarettes on them and he was also kicked many times.

e) He was put in a cell at gunpoint by two soldiers in red berets. Later, he was interrogated and threatened with torture by two other such soldiers. The appellant was so scared that he told them they were marching to the President's residence in a peaceful demonstration. He told them that the marchers would have killed him if not stopped, but that was not his own intention. He was interrogated once, beaten and locked up.

f) That night, other soldiers took him to Kundara prison. He was kept there until 5 February 2007. Meantime, his brother found out where he was.

g) On 5 February 2007, he was called by a guard and taken to an officer who was a neighbour through whom his brother had organised his release. He was taken out of prison and driven to an empty house. The officer came back with his brother. It was explained that he was released unofficially from prison and there were still many problems because of his involvement with the demonstration. The authorities would still be looking for him. The appellant thinks his brother must have paid a bribe to get him released. The officer said it was too dangerous for him to stay in Guinea as the authorities [would] be looking for him and it would not be safe for him or the brother either.

h) It was unusual for someone to get out of Kundara prison alive. It was used to deal with political opponents. The reason the appellant was taken there was because he was part of the group that the authorities thought was going to kill the President.

i) After 24 days in hiding he was taken to the airport by an 'agent' (a euphemism for a human trafficker) and his brother. His brother left him there.

j) He flew from Guinea to the UK on what he believes to have been a false passport, accompanied and assisted by the "agent" who went with him all the way to Croydon.

k) He was afraid of being tortured or killed on return because he had escaped from prison and the authorities thought he wanted to kill the President. His brother had told him that unidentified people not in uniform had asked for him one day but went away when he told them he did not know where the appellant was.

l) He acknowledged that the newspaper [which had been produced in evidence] was dated 30 April 2007 and had been provided for translation in Scotland on 2 May 2007. This he said was sent by his brother by post. He thought the red berets might have provided the photograph [of the petitioner, which was in the newspaper]." (Determination and Reasons, paragraph 7)

The newspaper which is referred to purported to report "savagely cruel repression" of the strikers by the authorities and that the petitioner was among the victims who ended up in the hands of the police in Conakry.

[4] The immigration judge dismissed the appeal. He held that, although in parts credible, the appellant overall did not give a credible and reliable account, and explained why he had come to that view. He expressed grave misgivings about the authenticity of the newspaper, for reasons which he gave. Importantly, in my view, he made this finding:

"In any event, even if he were to be believed as to his story of detention, mistreatment and release, I do not consider that there is a real risk of repetition given his release." (Determination and Reasons, paragraph 18)

The immigration judge explained that the circumstances of his release as spoken to by the petitioner were such as to point towards its being either regular, and not involving a friendly soldier, or at least made to appear regular so as to cover those involved. Further, accepting that the petitioner flew from Guinea to the UK, the immigration judge concluded that it was not credible that he would have taken the risk involved in doing so if he were suspected of wanting to harm the President and was fleeing in fear. The immigration judge's reasons survived scrutiny by the senior immigration judge.

The circumstances of the present application

[5] Under cover of letter, dated 17 June 2011, solicitors acting for the petitioner, Loughran & Co, sent to the SSHD a number of documents, described in the letter as "significant new evidence", which had not previously been seen by her. It was explained that, on the basis of these documents, the petitioner "would like to make a fresh claim for asylum and humanitarian protection". By letter, dated 5 July 2011, the SSHD intimated her decision that the petitioner's "fresh representations do not amount to a fresh claim". On 15 August 2011, the petitioner's solicitors again wrote to the SSHD, making further representations in response to certain findings which had been set out in the letter of 5 July. No further document was submitted with that letter. On 24 October 2011, the Border Agency intimated the SSHD's decision that the 15 August representations, taken together with previously considered material, did not amount to a fresh claim. On 4 July of this year, the SSHD withdrew both decision letters and replaced them with a single letter of that date ("the decision letter"). The petitioner now seeks reduction of the SSHD's decisions as contained in that letter.

The relevant law and practice

[6] Acting under the provisions of section 3(2) of the Immigration Act 1971, the SSHD has laid down rules as to the practice to be followed in the administration of the Immigration Acts for regulating entry into and the stay of persons in the United Kingdom. Paragraph 353 of the Immigration Rules (HC 395) provides as follows:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraphs 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i.) had not already been considered; and

(ii.) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

[7] In R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855, Laws LJ construed the phrase "a realistic prospect of success" in this way:

"A case which is clearly unfounded is one with no prospect of success. A case which has no realistic prospect of success is not quite in that category; it is a case with no more than a fanciful prospect of success. 'Realistic prospect of success' means only more than a fanciful such prospect." (Paragraph 34, original emphasis)

[8] When this case came before me for a first hearing on 13 July 2012, parties were agreed as to the respective tasks of the SSHD in determining whether or not further submissions amount to a fresh claim, and of the court in determining an application for judicial review of the SSHD's decision. They were also in agreement as to the approach which the SSHD and the court should take in reaching their respective decisions.

The task of the SSHD

[9] In WM (Democratic Republic of Congo) v SSHD [2006] EWCA Civ 1495; [2007] Imm AR 337; [2007] INLR 126, Buxton LJ, with whom Jonathan Parker and Moore‑Bick LJJ agreed, said this:

"6. There was broad agreement as to the Secretary of State's task under rule 353. 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."

[10] The origin and meaning of the phrase "anxious scrutiny" were considered in R. (on the application of YH (Iraq)) v Secretary of State for the Home Department [2010] EWCA Civ 116; [2010] 4 All ER 448. Carnwarth LJ, with whom Moore‑Bick and Etherton LJJ agreed, said this:

"22 The expression 'anxious scrutiny' derives from the speech of Lord Bridge in Bugdaycay v Secretary of State [1987] AC 514 , 531, where he said:

'The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny.'

23 It has since gained a formulaic significance, extending generally to asylum and article 3 claims (see e.g. MacDonald para 8.6). Thus, in WM (Democratic Republic of Congo) v Secretary of State [2006] EWCA Civ 1495, Buxton LJ explained that where asylum was 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.'

It has now become an accepted part of the canon, but there has been little discussion of its practical significance as a legal test.

24 As I suggested in AS (Sri Lanka) (para 39), the expression in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind: indeed, one which might be thought an 'axiomatic' part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account. I would add, however, echoing Lord Hope, that there is a balance to be struck. Anxious scrutiny may work both ways. The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies."

Task of the court

[11] In WM (Democratic Republic of Congo), Buxton LJ explained the court's task in these terms:

"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."

[12] The approach enunciated by Buxton LJ was adopted and applied in this jurisdiction in FO (Nigeria) v Secretary of State for the Home Department [2010] SLT 1087. (See also Dangol v Secretary of State for the Home Department [2011] SC 560, at paragraph 7)

[13] In this case, the Wednesbury ground which is relied on by the petitioner is irrationality. He contends that the SSHD acted irrationally in rejecting the petitioner's submissions, because, it is contended, she did not properly consider whether there are realistic prospects that another immigration judge, applying anxious scrutiny, would hold that the petitioner will be exposed to a real risk of persecution on his return to Guinea. (Petition, paragraph 6)

[14] In R. (on the application of Rahimi) v Secretary of State for the Home Department [2005] EWHC 2838 (Admin), Collins J had this to say about the test to be applied by the SSHD in considering whether further evidence amounts to a fresh claim:

"19 ... ... if it is intrinsically incredible, or if when one looks at the whole of the case, it is possible to say that no person could reasonably believe this evidence, it should be rejected. If it is, on the face of it, credible and if, despite the feeling that it might be disbelieved, it is not possible to say that it could not reasonably be believed, then, as it seems to me, the decision ought to be based upon that state of affairs. The Secretary of State would be wrong to say 'I don't believe it and therefore I am not going to regard this as a fresh claim'."

Mr Forrest, who appeared for the petitioner, submitted that I should apply that test when scrutinising the SSHD's decision‑making process in this case, and Mr Davidson, who appeared for the respondent, agreed. In the event, as will be seen, the determination of this petition did not require the application of that test.

[15] Mr Forrest further submitted, and Mr Davidson again agreed, that the SSHD must consider further evidence in the round (i.e. together with all of the other evidence in the case), and that the findings of the immigration judge are always relevant to that process. (See JBM (Democratic Republic of Congo) v Secretary of State for the Home Department [2009] CSIH 57; Mibanga v Secretary of State for the Home Department [2005] INLR 377; EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159)

The new evidence

[16] In the hearing before me, Mr Forrest described the documentation that was attached to the letter of 15 June 2012 as falling into three categories. These were:

(i) A wanted notice and arrest warrant;

(ii) A medical report; and

(iii) Country information.

The wanted notice and arrest warrant

[17] Both the wanted notice and the arrest warrant were produced with an English translation. The wanted notice purports to be have been executed by an examining magistrate in the County Court of Conakry on 5 September 2007 and calls upon various agencies to apprehend three named persons, including the petitioner, who were "Charged with Rebellion against the authority of the State during the strike of January 2007". The arrest warrant bears the date 13 September 2010, purports to have been signed by another examining magistrate in the same court, and names the petitioner as "Charged with rebellion against authority during the strike of January 2007". In the decision letter, the SSHD devotes 12 paragraphs (18 to 29) to an analysis of these documents in the context of evidence previously submitted in support of the petitioner's claim, together with the petitioner's own statement dated 15 June 2011, and the immigration judge's findings. She concludes as follows:

"... ... it is considered that the further documents your client has lodged in support of his claim, do not create a realistic prospect of success that an Immigration Judge would find, upon application of the rule of anxious scrutiny, that there is a reasonable degree of likelihood that your client would face persecution upon his return to Guinea on account of his political opinion or that his removal would breach Articles 2 or 3 of the ECHR."

[18] In his pleadings, the petitioner avers that the SSHD acted irrationally in concluding that there is no realistic prospect of successfully establishing before another judge what both documents say and, in so concluding, the SSHD usurped the function of the court by reaching a decision which it was not open to her to reach. During the hearing before me, however, Mr Forrest explained that the petitioner now accepts what the SSHD says about these documents in her decision letter, in other words it is accepted that she was entitled to conclude that they do not create a realistic prospect of such success.

"

The medical report

[19] The petitioner was examined by Dr Neil Dignon, a Consultant in Emergency Medicine at Glasgow Royal Infirmary, on 28 January 2011. The report of that examination is dated 31 January 2011. Dr Dignon records that he was instructed by the petitioner's solicitors to examine the petitioner and to document "any injuries sustained by this client as a result of any mistreatment and any ongoing medical problems". His "Summary of Diagnosis" is in the following terms:

·      Alleged physical and psychological abuse while in detention in Guinea

·      Soft tissue injuries to the lumbar spine and left hip

·      Multiple scars consistent with burns to both wrists and forearms

·      A number of oblique lacerations consistent with having been beaten with a wire bundle

·      Psychological symptoms consistent with anxiety, depression and likely post traumatic stress disorder"

Dr Dignon addressed other aspects of the petitioner's condition in his report, but it is unnecessary for me to record these for the purposes of this opinion.

[20] In her decision letter, at paragraphs 31 to 56, the SSHD has subjected Dr Dignon's report to a detailed analysis, considering its terms in its broader context, as she did with the wanted notice and arrest warrant. At paragraphs 55 and 56 she expresses this view:

"55 ... .... The Immigration Judge, again having the full facts before him, found that:

'In any event, even if he were to be believed as to his story of detention, mistreatment and release, I do not consider that there is a real risk of repetition given his release. ... ...'

56. Therefore, Immigration Judge Corke found that, even if your client's account of detention and mistreatment was to be believed, which you claim the medical report supports, your client is not at real risk of this being repeated upon his return, thereby dismissing the appeal on all grounds."

[21] In challenging the SSHD's conclusions on the medical report, the petitioner avers that she erred in two respects. The first is that, in considering Dr Dignon's report, she "fully considered" the case of HH (Ethiopia) v SSHD [2007] EWCA Civ 306 (15 March 2007) which, she states:

"maintained the approach of S v SSHD [2006] EWCA Civ 1153 and Mibanga v SSHD [2005] EWCA Civ 367 in that all evidence in a case should be assessed in the round before arriving at a final assessment of credibility". (Decision letter, paragraph 32)

In my view, that proposition is unassailable, and it was not challenged. At paragraph 37, however, she continues:

"The case of HH establishes that less weight can be applied to medical evidence from practitioners without relevant specialist qualifications, commenting specifically on the diagnosis of PTSD without a specialist psychiatric qualification. ... ... Therefore, although no definitive formal diagnosis of post traumatic stress disorder (PTSD) has been made, it is noted that in this case no details have been provided to suggest that Dr Dignon is suitably qualified to make any assessment of PTSD."

[22] In his oral submissions, Mr Forrest pointed out that HH (Ethiopia) was an appeal from a decision of the Asylum and Immigration Tribunal and that the central issue in the case concerned the appellant's credibility. It was in that context that the Court of Appeal remarked that an opinion on psychiatric matters which had been expressed by a doctor who lacked psychiatric qualification "could only have limited weight" as providing support for the appellant. (HH (Ethiopia) paragraph 20) Mr Forrest submitted that, by contrast, in this case the question for the SSHD was not whether the petitioner was tortured, but whether there is a realistic prospect that another immigration judge might conclude that he was. The weight to be attached to the medical report would be a matter for him or her. Consequently, argues the petitioner, "reference to cases such as HH (Ethiopia) v SSHD ... ... is not relevant". (Petition, paragraph 6.2)

[23] The second error which the petitioner contends was made by the SSHD in her consideration of the medical report is that she assessed it as if a claim were being made by the petitioner that removal would contravene his rights under article 3 ECHR because his medical condition is so grave that he would be unable to have it treated in Guinea. The petitioner, submitted Mr Forrest, makes no such claim. Dr Dignon's report is relied on to demonstrate that he was previously tortured. The issue again, it was submitted, is one of proof: only if it can be said that the prospects of his being able to do so are fanciful, remote or that the evidence relied on is not inherently credible can it rationally be said that there are no realistic prospects of success before another judge. It is contended on behalf of the petitioner that he is entitled to have an opportunity to establish facts on the basis of which it might be concluded that he was subjected to torture and ill-treatment.

The country information

[24] The country information comprises three documents: an article from "Consultancy Africa Intelligence", dated 16 November 2010, entitled "Election Reflection"; an article, dated 17 December 2009 entitled "Guinea's Complex Political Nexus: Threat To Regional Stability"; and an article, dated 5 December 2009, entitled "Civil war feared in Guinea as militia grows". In their letter of 17 June 2011, the petitioner's solicitors explain that these articles document "mistreatment of our client's tribe - the Peul (Fulah) tribe in Guinea, and the fact that they are tortured and targeted by the government ... ..."

[25] In the decision letter, the SSHD summarises the relevant passages from these articles, points to other objective evidence, notes that the country information produced by the petitioner's solicitors all predates the democratic election of President Alpha Condé in December 2010, and concludes:

"68. It can therefore be seen that, whilst it is acknowledged that there have been, and there continues to be ethnic tensions in Guinea, these are across all ethnic groups in Guinea and not entirely restricted to the Peul. The objective evidence outlined above confirms that the law in Guinea prohibits racial or ethnic discrimination and that steps have been taken by the new government to promote peace and unity amongst different ethnic groups.

69. Immigration Judge Corke, having the full facts of the case before him and in possession of the relevant objective country evidence at the time of your client's hearing, found that there was not a reasonable degree of likelihood that your client would face persecution upon his return to Guinea on account of his political opinion or that his removal would breach Articles 2 or 3 of the ECHR. Whilst the objective evidence you have submitted confirms that there has been ethnic violence in Guinea and that some Peul have been targeted as part of this violence, it is not considered that there is a reasonable prospect that another Immigration Judge, applying the rule of anxious scrutiny, would find that there is a reasonable degree of likelihood that your client would face persecution upon his return to Guinea solely on account of his Peul ethnicity, or that his removal would breach Articles 2 or 3 of the ECHR."

[26] In his petition, the petitioner makes these averments:

"The respondent does no more than quote from the objective evidence. No conclusions are reached which are sufficiently detailed to warrant the conclusion (paragraph 69) that there are no realistic prospects of success before another judge."

[27] In his oral submissions, Mr Forrest candidly volunteered that the country information is not up to date, and that it is of a general nature and not specific to the petitioner. He submitted, however, that it demonstrates that the petitioner "may be at risk".

Discussion

The medical report
[28] I find the petitioner's complaint that the SSHD has assessed the medical report as if a claim were being made by the petitioner that removal would contravene his rights under article 3 ECHR (the second error) to be without substance. The SSHD was entitled to consider all of the possible ECHR implications of the further evidence that was before her. Nothing that she says in considering the article 3 point operates to undermine her findings on the persecution point.

[29] In my view, however, there is some force in Mr Forrest's criticism of the reliance which the SSHD appears to have placed on the HH (Ethiopia) case, in rejecting Dr Dignon's diagnosis of "likely post traumatic stress disorder" (the first error). Paragraph 37 of the decision letter, which is quoted at paragraph 21 of this opinion, suggests that her decision on this matter involved a consideration of the weight to be attached to Dr Dignon's view. As a general proposition, there may be circumstances in which it will be legitimate for the SSHD to conclude that a different immigration judge will attach no weight to further evidence which has been submitted, and rule that it does not, therefore, amount to a fresh claim. That is, in effect, what the SSHD concluded in respect of the wanted notice and arrest warrant. But it will not normally be legitimate, in my opinion, to hold that a submission, taken together with the previously considered material, creates no realistic prospect of success, on the basis of an evaluation by the SSHD of the relative weight to be placed on the evidence. Such evaluation falls within the province of the immigration judge.

[30] My view on that matter does not, however, entitle the petitioner to succeed in this application. As Mr Forrest recognised, at best for the petitioner the evidence of Dr Dignon, if accepted, could do no more than support the contention that the petitioner had been the victim of mistreatment in Guinea. In the circumstances of this case, it tells us nothing about what might happen to him should he return to that country. For that, we must look elsewhere.

The country information

[31] As is noted at paragraph 24 of this opinion, the country information was produced by the petitioner's solicitors as evidence supporting the proposition that, if he returns to Guinea, the petitioner will be at risk of persecution because of his ethnicity. On the authorities considered above, it was incumbent on the SSHD to consider the country information together with the findings of the immigration judge and the other evidence in the case, as she did. As I have recorded in paragraph 4, the immigration judge was not persuaded on the evidence that was before him that the petitioner faces a real risk of further detention and mistreatment on his return to Guinea. There is nothing in the country information that would operate to counter the immigration judge's conclusion on that matter. At most, the country information documents might be taken as evidence that, under previous regimes, conditions in Guinea were such that members of the Peul tribe were the target of ethnic violence. There has now been a change of government, with the country's first democratically elected President in power. As recorded in the decision letter, and unchallenged in these proceedings:

"(t)he objective evidence ... ... confirms that the law in Guinea prohibits racial or ethnic discrimination and that steps have been taken by the new government to promote peace and unity amongst different ethnic groups".

Decision

[32] In my opinion, for the foregoing reasons, the SSHD cannot be faulted for concluding that, having regard to the petitioner's further submissions taken together with the previously considered material, there is no reasonable prospect that another immigration judge, applying the rule of anxious scrutiny, would find that there is a reasonable degree of likelihood (which I take to be intended to have the same meaning as "real risk") that the petitioner would face persecution on his return to Guinea, solely on account of his ethnicity. Applying the Wednesbury test, it cannot be said, in my view, that in determining the matter as she did, the SSHD acted irrationally. The petition is, therefore, dismissed.