EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Mackay of Drumadoon Lord Philip	[2013] CSIH 51 P853/11 OPINION OF LADY PATON in the Petition of W.K.A. (A.P.) Petitioner and Reclaimer; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: For Judicial Review of a decision of the Secretary of State for the Home Department dated 19 May 2011 _______________

Act: Devlin; Allan McDougall, Solicitors

Alt: Webster; Office of the Solicitor to the Advocate General

7 June 2013

[1] I agree with Lord Mackay of Drumadoon, and have nothing to add.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Mackay of Drumadoon Lord Philip	[2013] CSIH 51 P853/11 OPINION OF LORD MACKAY OF DRUMADOON in the PETITION of W.K.A. (A.P.) Petitioner and Reclaimer; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of a decision of the Secretary of State for the Home Department dated 19 May 2011 _______________

Act: Devlin; Allan McDougall, Solicitors

Alt: Webster; Office of the Solicitor to the Advocate General

7 June 2013

Introduction

[2] The petitioner and reclaimer is a national of Iran. He is of Kurdish ethnicity. His date of birth is 20 February 1982. He is currently resident in Glasgow. The respondent is the Secretary of State for the Home Department.

[3] The reclaimer claims to have left Iran on or around 5 August 2006. He came to the United Kingdom via a lorry and claimed asylum on 7 September 2006. He did so by seeking to found on his participation in a Kurdish political party, Komala, whilst living in Iran. By letter dated 1 December 2006 the respondent refused the reclaimer's application for asylum and claim for humanitarian protection. The respondent accepted that the reclaimer had shown support for Komala at a low level, but did not otherwise find his claims as to his involvement with Komala to be credible. The reclaimer appealed to the Asylum and Immigration Tribunal. By determination promulgated on 15 June 2007 the reclaimer's appeal was dismissed. The immigration judge noted that the reclaimer had accepted that the petitioner was a low level member of Komala. However the immigration judge did not find other parts of the reclaimer's account of events, as set out in his statements and spoken to during his interview and oral evidence, to be credible. Reconsideration of the immigration judge's decision was sought and refused by decisions dated 4 July 2007 and 13 November 2007.

[4] In the present judicial review the reclaimer avers that during the course of 2009 he left the United Kingdom and travelled to Norway, where his brother resides. His brother has been granted asylum by the Norwegian government. Whilst he was in Norway the reclaimer also claimed asylum in that country. However the Norwegian authorities declined to determine his claim as the reclaimer had previously sought asylum in the United Kingdom.

[5] On 22 September 2010 the reclaimer returned to the United Kingdom. He was the subject of a screening interview on the date of his return. The record of that interview, a record of an asylum interview dated 26 October 2010, a letter from Ahmed Azizpour from Representation of Komala Abroad, dated 26 January 2009 and a Certificate from Matthew Boulton College in Sutton Coldfield dated 2009 were treated as further representations dated 26 October 2010 in respect of the reclaimer's original claim for asylum.

[6] By letter dated 20 March 2011, the reclaimer was advised by the respondent that his asylum claim had been reconsidered on all the evidence available, including the most recent further representations, and that it had been decided that the decision of 1 December 2006, upheld by the immigration judge on 28 December 2007, should not be reversed. The reclaimer was also advised that it had been determined that the further representations did not amount to a fresh claim for the purposes of paragraph 353 of the Immigration Rules. That was because it was not accepted that another Immigration Judge, applying the rule of anxious scrutiny, would overturn the previous findings that the reclaimer did not face a real risk on return to Iran for a Convention reason or that the reclaimer would be subject to treatment contrary to articles 2 or 3 of ECHR on return.

Further representations dated 11 April 2011

[7] By letter dated 11 April 2011 solicitors acting for the reclaimer submitted further representations on his behalf to the respondent. These representations were presented as constituting a fresh claim for asylum in terms of paragraph 353 of the Immigration Rules. The solicitor's letter including the following paragraphs:-

"It is our client's position that he fled Iran with a well founded fear of persecution at the hands of the Iranian authorities on account of his political opinion. Our client claims to have been a member of the Komala Party who are recognised as an anti-regime political organisation. It has been accepted that he was a low level member of this organisation whilst resident in Iran and it is our submission, therefore, that his political affiliations are accepted. It is our client's evidence that his activities in Iran brought him to the adverse attention of the current Ahmadinejad regime. Our client believes that he remains of interest to the regime owing to his previous activities but he also believes that his political activities in Norway will have exacerbated the risk to his life upon return to Iran.

It is our client's position that he attended numerous demonstrations in Norway voicing his opposition to the Ahmadinejad regime. It is his understanding that individuals involved in the demonstrations in Norway have been detained upon their return to Iran and face the potential of lengthy prison sentences or execution at the hands of the authorities. We would submit that our client's fears are well founded in this regard and are strongly supported by the objective information available. We enclose herewith an Iran Human Rights Report titled 'An Iranian-Kurdish asylum seeker extradited from Norway to Iran is in danger of torture, ill treatment or death at Tehran's Evin Prison'. We would submit that this report is contemporary and reflects the most up-to-date situation in Iran for individuals demonstrating or opposing the regime outside their country of origin. This report is further supported by a report titled 'Durham University student Ehsan Abdoh-Tabrizi receives 7 year jail term'. We would again draw your attention to the fact that this report was published recently and highlights abuses carried out by the current regime against individuals opposing or perceived to be opposing the said regime. We would submit that our client falls within this risk category as he has been involved in numerous demonstrations, opposing the regime, in Norway.

We enclose herewith various photographs showing our client attending demonstrations in Norway. We have taken the liberty of circling our client in each photograph for ease of reference. It is our client's position that he was involved in numerous demonstrations in Norway and took up a prominent position in each. We trust you will note that our client is at the forefront of the demonstrations in a number of these pictures, displaying a large banner. We would submit that our client's activities in Norway give rise to a real risk of him being harmed by the Iranian authorities if forced to return to his country of origin. We are instructed that our client has attended at least 10 demonstrations in Norway, voicing his opposition to the Ahmadinejad regime. We trust the frequency of our client's attendances at the relevant demonstrations will be duly considered when assessing the risk to which he will be exposed if forced to return to Iran."

[8] The respondent was invited to consider the enclosed photographs in line with the guidance set out in Tanveer Ahmed (documents unreliable and forged) Pakistan [2002] UKIAT 00439. It was submitted that the photographs showed the reclaimer attending a demonstration outside the Iranian Embassy in Norway. The letter continued that in the event the respondent believed there was any dubiety as to the value of the photographs provided by the reclaimer, references were provided to five web pages on www.youtube.com in which the reclaimer could be identified at various demonstrations. The letter indicated that the reclaimer's position was that he had attended approximately ten demonstrations opposing the Ahmadinejad regime, whilst he had been a resident in Norway. The photographs and the You Tube footage showed him present and displaying a large banner at such demonstrations. Under reference to the country guidance set out in BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC) it was submitted that it was likely that demonstrations outside the Iranian Embassy in Norway would have come to the attention of individuals within the embassy and that the reclaimer would have been identified as a prominent member of the demonstrating crowd giving rise to a risk of his being subject to persecution were he to return to Iran.

[9] By letter dated 27 April 2011, the respondent replied to the reclaimer's solicitor's letter of 11 April 2011:

"17. The evidence submitted to suggest that your client has been engaging in political activities against the Iranian regime since leaving Iran consists of seven photocopies of photographs that claim to show your client attending anti-regime demonstrations in Norway. As mentioned the photographs are photocopies, not originals. Three of the seven photographs do appear to show some form of demonstration taking place however there is nothing in the photographs to confirm where these demonstrations have taken place or indeed what the activists in attendance are protesting or campaigning for (i.e. the theme of the demonstration is not clear). The photographs are of a relatively small gathering of people and in no way portray images suggestive of a high profile demonstration that would have had any degree of media coverage. You have in each of the photographs circled your client for reference. Although it is acknowledged that he appears to be holding one end of a banner in each of the demonstration photographs, there is nothing about his presence in the photographs to suggest that he is anything other than a member of the crowd. You have claimed in your letter that your client is at the forefront of the demonstrations, taking up a prominent position and could realistically be viewed by the authorities as being a ring leader in the demonstrating group. However he is amongst a number of individuals all carrying banners and he does not appear to be at the front of the crowd. There is nothing about his positioning in the photographs or even his physical stance in the photographs that would suggest that he is leading or addressing the crowd in any manner. You have stated in your letter that your client claims to have attended at least ten demonstrations in Norway however the photographs would also appear to all be of the same demonstration and so there has been no evidence advanced to suggest that your client has regularly participated in anti-regime activities since leaving Iran. The remaining four photographs are considered to add very little to your clients claim. They are of poor quality and are not considered to be images that confirm your client' attendance at an anti-regime demonstration.

18. Consideration was also made to the references given in your letter to a number of web addresses that featured videos of your client in attendance at demonstrations. The Home Office experienced difficulty accessing a number of these videos due to 'file errors' however three of the videos were viewed. It is worth noting that whilst the content of these videos has been fully considered, it has also been taken into account that the source of these videos, 'You Tube', is not considered to necessarily be a reliable source able to accurately verify the details of what the videos claim to show. It is acknowledged that one of the videos, listed on the internet site as being of a demonstration in Oslo against the Iranian regime, did appear to be a larger gathering of people than that featured in the photographs submitted and it is also noted that at times members of the crowd were not demonstrating in a peaceful manner, with vandalism being carried out in the street. The quality of the video was not sufficient enough for your client to be easily identified however going on the basis of the reference you gave in your letter that your client featured in this video on the left hand side at ten seconds into the footage and then again from one minute and seven seconds in, it is again considered that your client played a passive role in the demonstration. He was not addressing the crowd and did not come across as being a prominent figure amongst the protesting crowd. The other two videos that were viewed showed a smaller crowd, peacefully demonstrating. Again difficulty was had identifying your client due to both the quality of the videos and due to the fact that he had no significant role in the protests. He appeared to simply be a member of the crowd. The evidence does not substantiate your client's claim that his sur place activities have been to such a level that he would be at risk on return to Iran.

19. An Immigration Judge found your client to be incredible and to have been only a low level member of the Komala party of no interest to the Iranian authorities. The only evidence of your client's sur place political activities, at the highest, suggests that he attended low profile demonstrations in Norway (the evidence submitted does not confirm that he attended any more than one or two) whilst he was living there back in 2009. No evidence has been advanced to suggest that he has been politically active in any way whilst living in the UK. This is considered to be a relevant issue in relation to the point made in your letter whereby you stated that your client should not be expected to cease his anti-regime activities as it would suppress elements of his persona. However your client has provided no evidence that he has continued any anti-regime activities whilst living in the UK (a period of more than three years). Taking all this into account, it is not considered that another Immigration judge (applying anxious scrutiny) would conclude that his political activities and in turn political profile would amount to there being a reasonable degree of likelihood that he would face a real risk of suffering mistreatment at the hands of the authorities in Iran upon return.

20. It is also worth noting that both the news articles that you have submitted on behalf of your client have been considered. The report on the asylum seeker said to be imprisoned in Iran after being deported from Norway gives very little information on what the individual's political profile was or why and what charges had been brought against him in Iran upon his return. Whilst the other new report is more detailed in terms of the charges brought against and the sentence for the individual featured in the article, reference is made to the fact that the individual had strong connections to an individual concerned to be a well-known and constant critic of the regime. Given that it is not accepted that your client has any significant political profile that would be of interest to the authorities in Iran, the articles are not considered to be substantial evidence demonstrating that your client would be at risk on return.

21. Reference is made in the case law of BA to the risk upon return for a demonstrator who has played no significant role:

"We conclude therefore that for the infrequent demonstrator who plays no particular role in demonstrations and whose participation is not highlighted in the media there is not a real risk of identification and therefore not a real risk of consequent ill-treatment on return" [paragraph 66]

22. It is not accepted that the evidence contained in your further representations suggests that your client falls out with this category and this would be taken into account by another Immigration judge applying the test of anxious scrutiny.

23. The evidence advanced in your further representations has not been previously considered but taken together with the material already considered in your client's asylum claim, they would not have created a realistic prospect of success. Your submissions do not amount to a fresh claim for asylum.

24. As we have decided not to reverse the decision made on the earlier claim and have determined your client does not have a fresh claim, your client has no further right of appeal."

Further representations dated 4 May 2011

[10] On 4 May 2011 the reclaimer's solicitors wrote again to the respondent. Their letter bore to be a fresh claim for asylum based on further representations submitted in terms of paragraph 353 of the Immigration Rules. The letter dated 4 May 2011 contained the following paragraphs:

"We would submit that the Secretary of State is bound by the precedent set in WM (DRC) -v- Secretary of State for the Home Department [2006] EWCA Civ 1495 where Buxton LJ states that "the Rule only imposes a somewhat modest test the Application has to meet before it becomes a fresh claim". It is respectfully submitted that the Secretary of State, when considering our client's previous representations, failed to apply the appropriate "modest test". It is averred that the evidence of our client's activities in Norway should be considered in the round and in accordance with the precedent set in BA (Demonstrators in Britain - Risk on Return) Iran CG [2011] UKUT36 (IAC). In terms of the precedent set in BA it is submitted that there is a real risk of our client being subjected to persecution or serious harm upon his return to Iran.

Our client has been accepted as a low level member of the Komala Party. It has, therefore, been accepted that he had an anti-regime political profile to entering the United Kingdom. Whilst the Immigration judge did not believe that he had attracted the adverse attention of the Authorities in Iran it is credible that he has done so as a result of his activities in Norway. In terms of the precedent set in BA (Demonstrators in Britain - Risk on Return) Iran CG [2011] UKUT36 (IAC) the theme of the demonstrations in which our client was involved requires to be considered. It is our client's position that he was demonstrating as a member of the Komala Party and his position is clearly corroborated by the evidence advanced in his previous submissions. It can be clearly identified, from the banners on display, that the demonstrations that our client attended in Norway were anti-regime. The Iranian Authorities in Norway would have viewed the relevant demonstrations as anti-regime and it is credible, in light of the findings made in BA, that these demonstrations would have been filmed by the Iranian Authorities and it is also plausible that they would have planted people within the crowds in order to ensure that the demonstrators could be identified in the future. It is clear from the precedent set in BA that the Iranian Authorities are seeking to clamp down on dissidents abroad. They are taking proactive measures to identify individuals involved in demonstrations of an anti-regime nature to ensure that these demonstrators will be punished for their involvement.

It is respectfully submitted that it is also fundamentally important to give due consideration to our client's activities and how he will be perceived by the regime as a result of these activities. It cannot be refuted that our client is photographed carrying a large banner which displays an anti-regime slogan. The banner appears to be between 10 and 12 feet long and our client is depicted at the front of the demonstrating group. In these circumstances and in terms of the precedent set in BA he will clearly be perceived as an active member of the group. As far as the Iranian regime is likely to be concerned his motives are unambiguous. It is our client's position that he is a regular participant in these demonstrations and, in such circumstances, it is entirely credible that he will have attracted the adverse attention of the Iranian Authorities in Norway. Our client previously submitted numerous YouTube videos depicting his involvement in demonstrations. Whilst it is the Secretary of State's position that YouTube is 'not considered to necessarily be a reliable source able to accurately verify the details of what the videos claim to show' it is maintained that these videos should be taken at face value in light of the evidence provided by our client.

We can confirm that our client has identified himself in further footage sourced online. We would refer you to www.liveleak.com/view ?i=0bO- 1273757320 from 59 seconds to 1 minute 3 seconds. Our client can be seen at the forefront of a demonstrating group outside the Iranian Embassy in Oslo, Norway. It is our client's position that he did not engage in any acts of vandalism or violence during this demonstration and his involvement was peaceful throughout. We would submit, standing our client's involvement in this demonstration and the proximity within which it was conducted to the Iranian Embassy; it is entirely credible that he would have attracted the adverse attention of the Authorities therein. In addition this demonstration appears to have attracted much publicity and has generated a response from the Iranian Foreign Minister Manouchehr Mottaki in Norway. We enclose herewith a copy of a Press TV report detailing the Iranian Foreign Minister's response to the demonstration in which our client was involved. We also enclose a screen printout showing our client on the Liveleak video at 1 minute and 2 seconds in. We would submit that this footage clearly puts our client's activities into context.

We would submit that our client has provided coherent and credible evidence of his attendance at a number of anti-regime demonstrations in Norway. It is his position that the Iranian Authorities filmed these demonstrations which would give rise to a real risk of him being identified as an individual who has engaged in anti-regime activities abroad if he is forced to return to Iran. We would submit that our client has taken up a prominent position in the relevant demonstrations and has displayed a particularly prominent banner during these demonstrations. We would respectfully submit that the Secretary of State has erred in law when considering our client's previous further submissions in terms of the precedent set in BA. The evidence submitted by our client requires to be considered in the round. The photographs submitted should be taken with the video evidence and the evidence provided by our client. They should be assessed accordingly in terms of the precedent set in BA. The Secretary of State's assertion that our client would be considered as an infrequent demonstrator who has played no particular role in the demonstrations in terms of paragraph 66 of BA is erroneous. It is clear that our client can be considered to be an active member standing the position that he took up in the relevant demonstrations and the fact that he displayed a particularly large banner."

[11] By letter dated 19 May 2011 the respondent rejected the further representations on behalf of the reclaimer. The letter advised that since the further representations had not resulted in a grant of leave, they had been considered under paragraph 353 of the Immigration Rules.

[12] The letter acknowledged that the documents submitted with the further representations had not previously been considered. The letter included the following paragraphs:-

"14. Your client claims to be at risk on return to Iran due to his political affiliation. Your client has provided several documents in support of this claim. The internet article dated 7/08/2010. Your client has provided no reasonable explanation as to why this could not have been submitted at an earlier juncture. Moreover, there is nothing to suggest that this article relates to your client specifically. The article entitled 'Attack on Iranian embassy in Oslo' shows a picture of three individuals. It is noted that this particular picture was previously considered in the letter dated 27/04/2011 paragraphs 17-20. The internet articles submitted by your client are not significantly different to those previously considered. These are all matters another Immigration Judge would take into consideration when applying the rule of anxious scrutiny.

15. Your client claims to have submitted evidence of him protesting in Norway. He has provided a print out of a video clip. There is nothing in this document (or any of the documents provided) to suggest that he is leading or addressing a crowd. Moreover, your client has not provided any information to indicate that he regularly participates in anti-regime demonstrations. Furthermore, the case of [2011] UKUT 36 (IAC) Iran CG BA (Demonstrators in Britain risk on return) was fully considered in the letter dated 27/04/2011. A matter another Immigration Judge would take into consideration when applying the rule of anxious scrutiny.

16. Another Immigration Judge would also take into consideration the findings of the previous tribunal where it was concluded that your client could not be at risk on return to Iran due to his claimed political affiliation. The Immigration Judge stated,

"The Appellant's account of how he was shot at by the police I did not find credible..." (Paragraph 28)

"I do not accept that the authorities have any interest in the Appellant or would connect him with a political party..." (Paragraph 30)

"Therefore, I believe that the Appellant had some involvement with the Komalah Party. He displayed some knowledge of the party at interview. However because of the lack of credibility in this case I believe that his involvement was low level and he has not come to the attention of the authorities. I have not been told the truth about any trips that he might have taken to the border. Therefore if he were to return, he would not be at risk. I have been referred to the case of 00107 D which confirms that there is no real risk or serious possibility of the Appellant being detained on return to Iran. He would be questioned about his departure but I do not accept that he would face persecution as a result of having left the country illegally. I do not accept that the authorities have any record of him having been involved with an opposition party" (Paragraph 31)

"Given the conclusion as outlined above, I find that the appellant has not discharged the burden of proof to establish that he is entitled to the grant of asylum. I come to the conclusion that the appellant's removal would not cause the United Kingdom to be in breach of its obligations under the Qualification Regulations." (Paragraph 32)

17. It can be seen from the above consideration that your client's case can be differentiated from BA and when taking into account your client's negative credibility, the objective evidence the findings of the previous tribunal along with the principles of Tanveer Ahmed, it would not create a realistic prospect of success before an Immigration Judge applying the rule of anxious scrutiny.

18. In conclusion, the Immigration judge who heard your appeal stated that your client was able to return Iran without any difficulty. It is considered that there is no realistic prospect of success that an Immigration judge, applying anxious scrutiny, would find that the production of this information would in any way alter the original decision (and subsequent AIT determination). It has therefore been concluded, as previously determined by the Home Office and the AIT, that your client would not be subjected to persecution or ill-treatment amounting to a breach of Articles 2 or 3 of the ECHR on return to his country of origin."

The present petition for judicial review

[13] The reclaimer subsequently lodged a petition seeking judicial review of the respondent's letter of 19 May 2011. In Statement 6 of the petition it is made clear that it is the respondent's treatment of whether the new claim submitted on 4 May 2011 is a fresh claim in terms of paragraph 353 of the Immigration Rules which is the subject matter of the judicial review.

[14] The applicable law on that issue is helpfully summarised in paragraph [7] of the Lord Ordinary's opinion:-

"Immigration Rule 353 is in the following terms:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 33C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submission 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 previously considered material created a realistic prospect of success notwithstanding its rejection."

What the Rule requires has been explained by Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337 at 340 in terms which were adopted and affirmed by the Inner House in O v Secretary of State for the Home Department [2010] SLT 1087 and D v Secretary of State for the Home Department [2011] SLT 645. Buxton LJ 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 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".

Having thus identified the task of the Secretary of State, Buxton LJ then considered the task of the court in the event of an application for judicial review of the Secretary of State's decision. He said this:

"[10] ...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, the 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...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 inquiry; 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 conclusion 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 these questions is in the affirmative it will have to grant application for review of the Secretary of State's decision".

[15] The Lord Ordinary then addressed the grounds for review that had been advanced on behalf of the reclaimer and responded to by counsel for the respondent. The reclaimer contended that the respondent had erred in law in four respects when she had decided, for the reasons set out the letter of 19 May 2011, not to treat the further representations made on behalf of the reclaimer on 4 May 2011 as constituting a fresh claim for asylum in terms of paragraph 353 of the Immigration Rules. Those errors in law had been (1) in finding that the additional material put forward on 4 May 2011 was not significantly different from what had previously been considered by the respondent; (2) in having regard to the irrelevant consideration that there was no explanation as to why the Press TV article had not been submitted earlier on behalf of the reclaimer; (3) in failing to have regard to the relevant circumstance that the reclaimer had regularly participated in demonstrations against the Iranian government; and (4) in misapplying the guidance set out in BA (Demonstrators in Britain - Risk on Return) Iran C G [2011] UKUT 36 (IAC).

[16] Before the Lord Ordinary began his discussion of those grounds, he made a number of observations on the fact that it was only the decision letter of 19 May 2011 that was the subject of the petition for judicial review. The petition did not seek reduction of the decision letter of 27 April 2011. Accordingly it was by reference to that decision (and all previous material) that the reclaimer had required to satisfy the respondent that the further representations of 4 May 2011 constituted a fresh claim in terms of paragraph 353 of the Immigration Rules and as the respondent had decided they did not constitute a fresh claim, it was that decision, expressed in the decision letter of 19 May 2011, which the reclaimer required to impugn.

[17] Turning to the first error of law on the part of the respondent which counsel for the reclaimer sought to rely upon, in paragraph [22] of his opinion the Lord Ordinary noted that the respondent was not taking issue with the reclaimer's assertion that he had demonstrated against the Iranian regime while he was in Norway and that the regime takes notice of such demonstrations in identifying those it regards as dissident and who may be subject to repression should they return to Iran. He went on to suggest that the contents of the documents submitted with the letter of 4 May 2011 were no more than a reiteration of what had previously been put to the respondent. The respondent had therefore been entitled to come to the view that the additional material submitted with the letter of 4 May 2011 added nothing of significance to the previously considered material and therefore did not create a realistic prospect of success for the reclaimer.

[18] The Lord Ordinary rejected the second ground of challenge, taking the view that the criticism advanced of the respondent's comment, about there having been no reasonable explanation as to why the Press TV article had not been submitted earlier, did not form a basis for impugning the respondent's decision. That was because the respondent had had regard to the material in the Press TV article.

[19] The Lord Ordinary was also persuaded that there was no merit in the other two grounds of challenge. He was satisfied that the respondent had understood the reclaimer claimed to have frequently attended demonstrations in Norway and had correctly applied the Country Guidance in BA (Demonstrators in Britain - Risk on Return) Iran C G, supra, it having been a matter of agreement between the parties that the country guidance was applicable to sur place activity in any other Western European country.

[20] In his submissions in this reclaiming motion counsel for the reclaimer sought to found on six grounds of appeal which were set out in the Grounds of Appeal that were lodged and developed at greater length in a subsequent Note of Argument.

[21] These grounds can be summarised as follows:

(1)  The Lord Ordinary erred in law at para [19] of his Opinion in that he held that the respondent's decision of 27 April 2011 was unchallenged.

(2)  The Lord Ordinary erred in law at para [19] of his Opinion in that he held that the reclaimer had to satisfy the respondent that the further submission of 4 May 2011 was a fresh claim in terms of Rule 353 of the Immigration Rules by reference to the decision of 27 April 2011.

(3)  The Lord Ordinary erred in law at para [22] of his Opinion in that he held that the respondent was entitled to come to a view that the additional material added nothing of significance to the previously considered material.

(4)  The Lord Ordinary erred in law at para [23] of his Opinion in that he held that nothing whatsoever turned on the respondent's observation that the reclaimer had provided no reasonable explanation as to why he could not have provided the Press TV internet article earlier.

(5)  The Lord Ordinary erred in law at para [24] of his Opinion in that he failed to consider whether the respondent was entitled to discard the assertion made on behalf of the reclaimer to the effect that he regularly participated in anti-regime protests, because it was not supported by independent evidence.

(6)  The Lord Ordinary had erred in law at para [25] of his Opinion in that he had asked himself the wrong question when applying the Country Guidance set out in BA (Demonstrators in Britain - Risk on Return) Iran C G, supra.

The corresponding documents on behalf of the respondent, namely Answers and a Note of Argument, succinctly addressed the principal issues raised in those grounds of appeal.

[22] Having considered those documents and the submissions the court heard from counsel for the reclaimer and counsel for the respondent, I have reached the conclusion that the Lord Ordinary may not have been correct when in para [19] of his Opinion he described the decision letter of 27 April 2011 as unchallenged. Whilst the reclaimer did not seek the reduction of that decision letter in this petition for judicial review, and in that sense the decision letter was unchallenged, it is clear that since the reclaimer received the decision letter of 27 April 2011 he has not accepted the respondent's decision or indeed much of what the respondent says in that decision letter as to her assessment of the further representations on behalf of the reclaimer that she had received with the letter of 11 April 2011. Moreover, when assessing the further representations she received with the submission of 4 May 2011, the respondent required to reconsider not only the new material in those further representations, but also in the light of that new material the old material previously considered by her predecessors in office, the immigration judge and herself, including the material submitted to her for the first time on 11 April 2011. And when considering that old material it was perfectly open to her to have regard to the fact that the reclaimer did not accept her decision of 27 April 2011 and, if so advised, to take a different view, to any she had previously taken, of the material enclosed with the submission of 11 April 2011. Accordingly if the Lord Ordinary intended to suggest that it was not open to the reclaimer to argue that having regard to the new material enclosed with the submission of 4 May 2011 the respondent had erred in her assessment of the material before her and in the decision she reached when she issued her decision letter of 27 April 2011, I take the view that the Lord Ordinary misdirected himself as a matter of law.

[23] The second ground of appeal also focuses on an observation made by the Lord Ordinary in para [19] of his Opinion that it was by reference to the decision letter of 27 April 2011, (and all previous material), that the reclaimer had to satisfy the respondent that the further submission of 4 May 2011 was a fresh claim in terms of rule 353 of the Immigration Rules. Counsel for the reclaimer argued that what had been said by the Lord Ordinary was capable of being construed as meaning that the starting point for the respondent had been the decision of 27 April 2011. If that is what was meant by the Lord Ordinary, I agree that amounted to an error in law. The starting point for the respondent ought to have been the determination of the Immigration Judge promulgated on 8 May 2007.

[24] Turning to the third ground of appeal, I agree that the Lord Ordinary erred in law at para [22] of his Opinion when he held that the respondent had been entitled to come to the view that the additional material included in the further representations added nothing of significance to the previously considered material. The background to this may be that the Lord Ordinary misunderstood the respondent's position when he stated, in para [22] of his Opinion, that she was not taking issue with the reclaimer's assertions that he had demonstrated against the Iranian regime and that the Iranian regime takes notice of such demonstrations in identifying those it regards as dissident.

[25] No such concessions had been made by the respondent in the decision letter of 27 April 2011. On the contrary in paragraphs 17 and 18 of that decision letter the respondent questioned the number of demonstrations the reclaimer attended, the nature of the reclaimer's role during any demonstrations he attended, the location of at least some of such demonstrations and what the activists in attendance at the demonstrations had been protesting against and campaigning for. In that decision letter the respondent observed that at its highest the evidence did not confirm that the reclaimer attended any more than one or two low profile demonstrations. Nor in that decision letter was it explicitly accepted by the respondent that the Iranian regime takes notice of such demonstrations when identifying those individuals it regards as dissident.

[26] Moreover, when one comes to the decision letter of 19 May 2011, one still does not find an explicit acceptance on the part of the respondent that the reclaimer had demonstrated against the Iranian regime as frequently as he claimed and that the Iranian regime takes notice of such demonstrations in identifying those it regards as dissident. Indeed it is clear from the reclaimer's solicitors' letter of 4 May 2011 that the two internet articles were being submitted in an effort to persuade the respondent to accept contentions that she had not accepted when she issued the earlier decision letter of 27 April 2011. The Live Leak "article" was tendered because of the respondent's view in that earlier decision letter that "You Tube" was not considered as being a reliable source able to accurately verify the details of what their videos claimed to show. The other internet article from Press TV dealt with a topic on which the respondent had found against the reclaimer in the earlier decision letter of 27 April 2011, namely whether the demonstrations the reclaimer had attended would attract any degree of media coverage.

[27] In my opinion, therefore, it cannot be said that the full contents of the further representations set out in and enclosed with the letter of 4 May 2011 had already been considered by the respondent. The contents of the Press TV article dated 7 August 2010 in particular were not a repetition of what had previously been put forward and had certainly not been considered at an earlier stage. The Live Leak article was a direct response to an observation about You Tube, which the respondent had made in para 18 of her decision letter of 27 April 2011. The contents of both articles require to be considered against the background of what had previously been presented to the respondent and rejected in whole or in part by her.

I do not agree with the submission on behalf of the respondent that the Live Leak and Press TV articles could only be construed as doing no more than corroborating facts that had already been established and agreed by the respondent.

[28] In the letter of 11 April 2011, it was represented on behalf of the reclaimer that he had taken part in at least 10 demonstrations outside the Iranian Embassy in Oslo. Those demonstrations had been voicing opposition to the Ahmadinejad regime in Iran. During those demonstrations the reclaimer had been in a prominent position and had held a large banner. A number of photographs and references to video film on "You Tube" were enclosed in support of the further representations.

[29] In her decision letter of 27 April 2011, the respondent noted that whilst three of the photographs submitted appeared to show some form of demonstration taking place, there was nothing in the photographs to confirm where the demonstrations had taken place and what the activists in attendance had been protesting about or campaigning for. The photographs were described as showing a relatively small gathering of people and in no way portraying images suggestive of a high profile demonstration that would have had any degree of media coverage. Whilst the reclaimer and others present were seen to be carrying banners, there was nothing to be seen that suggested that the reclaimer had been leading or addressing the crowd in any manner (para 17). As far as the website references to videos were concerned, the respondent acknowledged that one of the videos, which had been listed on the You Tube internet site as being of a demonstration in Oslo against the Iranian regime, did appear to be of a larger gathering of people than that featured on the photographs. It was also noted that at times the members of the crowd had not been demonstrating in a peaceful manner, with vandalism taking place in the street. The respondent explained that the quality of the video had not been sufficient to enable the reclaimer to be identified. However, on the assumption that the reclaimer was the person shown on the left hand side of the video (which had been indicated in the letter of 11 April 2011 sent to the respondent) it was noted by the respondent that the reclaimer had played a passive role in the demonstration. The respondent made similar comments about what could be seen in the two other videos that it had proved possible to watch (para 18). The respondent then explained in the following paragraphs why it was not accepted that the reclaimer had a significant political profile that would be of interest to the authorities in Iran. Nor was it accepted that there was a real risk of the reclaimer suffering ill-treatment in the event of his return to Iran (paras 19-23).

[30] I turn now to the further representations on behalf of the reclaimer, which were submitted with the letter of 4 May 2011 and the respondent's subsequent decision letter of 19 May 2011. As has previously been indicated, the further representations included two internet articles, one originating from Press TV, dated 7 August 2010, and the other from Live Leak, dated 13 May 2010. In para 14 of the decision letter of 19 May 2011, the respondent expresses the view that those internet articles were "not significantly different to those previously considered". I agree that had the respondent been acting reasonably she would not have reached that view.

[31] Press TV is a broadcaster in Iran. Their article dated 7 August 2010 carries a report of a violent protest at the Iranian Embassy during which a group of what were described as "Islamic Republic Enemies" damaged cars and other properties of the embassy. The article confirms that the attack on the Embassy in Oslo had given rise to a diplomatic complaint by the Iranian Foreign Minister Manouchehr Mottaki to Norwegian Foreign Ministry officials, in which the letter of complaint had been accompanied by demands that the Norwegian Government ensure the safety of the Iranian delegation at the embassy and compensate for the damage caused. The demonstration had also resulted in the attraction of publicity in Iran.

[32] The Live Leak article, dated 13 May 2010, included a report of an attack on the Iranian Embassy in Oslo, during which cars belonging the employees to the embassy were damaged. The article described the protesters as chanting death to the Islamic Republic and included a photograph of the reclaimer. The respondent observes that this particular picture had previously been considered in the decision letter of 27 April 2011. In doing so, the respondent would not appear to have recalled that in the earlier decision letter she had expressed reservations about YouTube not being a reliable source to verify the details of what their videos claim to show. The acceptance of the photograph in the Live Leak article thus established what had previously been seen in a photograph taken from a YouTube video, which the respondent had been unwilling to rely on in the decision letter of 27 April 2011, namely the reclaimer's presence at a demonstration outside the Iranian Embassy in Oslo. More importantly, the two internet articles painted a picture of a violent and high profile demonstration outside the Iranian Embassy that led to a diplomatic protest. That picture falls to be compared with the more limited description the respondent chose to accord in paras 17 and 18 of the decision letter of 27 April 2011 to the demonstrations the reclaimer might have been present at.

[33] In para 15 of the decision letter of 19 May 2011 the respondent deals with the footage on Live Leak, in which the reclaimer can be seen in a group demonstrating outside the Iranian Embassy in Oslo. She observes that there is nothing in this document (sic) or any of the other documents provided to suggest that the reclaimer is leading or addressing a crowd. Nor has the reclaimer provided any information to indicate that he regularly participates in anti-regime demonstrations.

[34] During the course of his submissions counsel for the respondent acknowledged that the only logical conclusion from paras 17 and 18 of the decision letter of 27 April 2011 and para 14 of the decision letter of 19 May 2011 was that the respondent accepted that the reclaimer had taken part in the protest outside the Iranian Embassy that had given rise to the diplomatic complaint reported on in the Press TV article dated 7 August 2010. Having regard to that concession, it is clear the respondent erred in her assessment that the contents of the internet articles were not significantly different to material that had previously considered. In the earlier decision letter the respondent did not explicitly accept that the reclaimer was present at a demonstration during which violence was used. Counsel now makes such a concession on her behalf. In the earlier decision letter, the respondent comments on the fact that only three of the photographs submitted showed "some form of demonstration taking place", but that there was nothing in the photographs to confirm where the demonstrations had taken place or what the activists in attendance were protesting or campaigning for. The photographs were of what was described as a very small gathering of people and in no way portraying images suggestive of a high profile demonstration that would have had any degree of media coverage.

[35] It is now accepted that the reclaimer took part in a demonstration outside the Iranian Embassy. Those taking part in the demonstration were protesting against the Iranian Regime and seeking a change of regime. Some of those taking part in the demonstration used violence and caused damage to motor vehicles owned by members of the Embassy staff. The reclaimer himself was holding a banner. The demonstration attracted the attention of the media in both Norway and Iran and gave rise to the Iranian Government making a diplomatic protest to the Norwegian Government.

[36] Against that background, I have some difficulty in understanding how the full contents of the internet articles submitted with the further representations of 4 May 2011 can properly be described as being not significantly different to those previously submitted. In particular, I am unable to agree with the submission advanced on behalf of the respondent that all the articles did was to corroborate facts that had already been established. Both the Press TV and Live Leak articles provided details of a demonstration outside the Iranian Embassy in Oslo, in which property was damaged and which gave rise to a diplomatic complaint and publicity in Iran. The presence of the reclaimer at such a demonstration, indeed the occurrence of such a demonstration, had not been accepted by the respondent in her decision letter of 27 April 2011.

[37] In my opinion, when account is taken of the evidence submitted with the further representations dated 4 May 2011 it can, in the first place, be said that the evidence is, at least in part, significantly different from the material that had previously been submitted by or on behalf of the reclaimer in support of his claim for asylum.

[38] As the country guidance to be found in BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 makes clear, when considering the nature of an asylum seeker's sur place activity, regard requires to be had to a wide variety of factors including the theme of any demonstration(s) in which he takes part (eg reform of the Iranian Regime); whether the role of any applicant for asylum in a demonstration is active or passive (eg did he carry a banner); and the media coverage attracted by the demonstration(s) in question in the United Kingdom or Iran and the nature of such publicity.

[39] Turning to the fourth ground of appeal, whilst I can understand why attention has been focussed on the respondent's ill-advised comment, I am not persuaded that the Lord Ordinary erred in law in declining to rely on what the respondent had said about when the Press TV article was first produced, as a basis for reducing the respondent's decision letter of 19 May 2011. In passing I observe that in her decision letter the respondent does not indicate what she accepts from the Press TV article. Equally she does not address what an Immigration Judge could take from that article. However having regard to the concession now made by counsel for the respondent that it is now accepted that the reclaimer took part in the demonstration outside the embassy in Oslo that gave rise to the diplomatic protest, these omissions on the part of the respondent, which follow on her remark, need not be discussed in detail.

[40] As far as the fifth ground of appeal is concerned, I accept that in para [24] of his Opinion the Lord Ordinary appears to have misunderstood the complaint that was being made about the respondent's comment in para 15 of the decision letter of 19 May 2011. That comment was to the effect that the reclaimer had not provided any information to indicate that he regularly participated in anti-regime demonstrations. On the second page of each separate set of further representations submitted on 11 April 2011 and on 4 May 2011 it is quite clearly stated that the reclaimer had taken part in numerous anti-regime demonstrations. In these circumstances I agree that the comment in para 15 of the respondent's decision letter of 19 May 2011 appears to be founding on the absence of any corroboration of what the reclaimer himself was stating. In my opinion the respondent erred in law in taking account of the absence of corroboration from another witness. The respondent, having made that error, says nothing further to suggest that she did not make the same error when considering whether the new material, when taken with the previously considered material, created a realistic prospect of success for the reclaimer in a further claim for asylum before an immigration judge.

[41] I turn finally to the sixth ground of appeal. It relates to the Lord Ordinary's application of BA (Demonstrators in Britain - risk on return) (Iran CJ), supra to the facts of this case. In particular the submission on behalf of the reclaimer was that the Lord Ordinary erred in law in para [27] of his Opinion by asking himself the wrong question. That submission is based on the sentence in para [27] in which the Lord Ordinary states "The respondent was therefore entitled to conclude, as she states in paragraph 17 of the decision letter of 19 May 2011, that the (reclaimer's) case could be differentiated from BA."

[42] Counsel for the reclaimer argued that the questions the Lord Ordinary ought to have asked himself were (i) whether when issuing her decision letter of 19 May 2011 the respondent had in fact taken account of all the points identified by the reclaimer; and, if not, (ii) whether those factors could conceivably have caused the respondent to come to a different conclusion, had she taken account of them - that being the test for determining whether a failure to take account of a relevant consideration(s) amounts to a material error in law. I agree.

[43] The decision letter of 19 May 2011 is far from informative as to respondent's approach to and the scope of her application of the country guidance to be found in BA (Demonstrators in Britain - risk on return) (Iran CG), supra. In para 15 of the decision letter the respondent baldly states that the case was fully considered in the letter dated 27 April 2011 - a matter another immigration judge would take into consideration when applying the rule of anxious scrutiny. In para 17, referring back to unspecified previous paragraphs, the respondent stated that it can be seen that the reclaimer's case can be differentiated from BA.

[44] As I have discussed earlier, in para 17 of the decision letter of 19 May 2011 the respondent states that the two internet articles are not significantly different to those previously considered. I disagree for the reasons I have given. It is now accepted on behalf of the respondent that the reclaimer took part in a high profile demonstration in front of the Iranian Embassy during which he was filmed holding an anti-regime banner whilst others participating in the demonstration were involved in violence that caused damage to vehicles owned by employees of the embassy. It is also now a matter of agreement that the demonstration attracted the attention of members of the media, including Press TV, a broadcaster in Iran, and resulted in a diplomatic protest by Iran to Norway.

[45] In my opinion common sense suggests that during and subsequent to the demonstration in Oslo, which gave rise to the diplomatic protest, the Iranian authorities, whether within the embassy or based in Iran, would be interested in seeking to identify as many of the demonstrators as possible. In my opinion it is reasonable to assume that interest would extend not only the identities to those participating in violence but also those carrying banners critical of and seeking the removal of the Iranian Regime. I see nothing in the country guidance in BA (Demonstrators in Britain - risk on return) (Iran CG) supra to suggest otherwise. On the contrary from a consideration of paras 64 - 66 there are a number of factors that support the view that there are reasonable prospects that an immigration judge, exercising anxious scrutiny would hold that were the reclaimer to be returned to Iran he would be at risk of persecution in breach of articles 2 and 3 of ECHR. In these circumstances I find myself unable to agree with the Lord Ordinary when he talks of the respondent being entitled to conclude that the present case can be differentiated from BA (Demonstrators in Britain - risk on return) (Iran CG) supra. One turns to the latter case for guidance, not purely to compare the facts of that case with the facts of the case before the decision maker.

[46] In these circumstances I have come to be of the view that the respondent erred in law in proceeding on the basis she did that the contents of the internet articles were not significantly different to those submitted with the earlier representations on 11 April 2011 and previously considered. In my opinion, when the contents of the Live Leak and Press TV articles are looked at as containing information additional to and different from that which had previously been considered, it cannot be said there are no reasonable prospects that an immigration judge applying anxious scrutiny and considering all the evidence previously submitted in connection with the reclaimer's original claim for asylum and the further representations subsequently made, would reach the conclusion that were the reclaimer be returned to Iran he would be at risk of persecution contrary to articles 2 or 3 of the ECHR. In my opinion the respondent's decision that there are no such prospects was not a rational one. It was a decision that no reasonable decision maker would have reached and was in any event based on the material errors of fact and law.

[47] I would accordingly move Your Lordships to allow the reclaiming motion, recall the Lord Ordinary's interlocutor of 17 January 2012, sustain the reclaimer's plea in law, and grant reduction of the respondent's decision letter of 19 May 2011.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Mackay of Drumadoon Lord Philip	[2013] CSIH 51 P853/11 OPINION OF LORD PHILIP in the PETITION of by W.K.A. (AP) Petitioner and Reclaimer; against THE SECRETARY OF STATE FOR HOME DEPARTMENT Respondent for Judicial Review of a decision of the Secretary of State for the Home Department dated 19 May 2011 _______________

Act: Devlin; Allan McDougall, Solicitors

Alt: Webster; Office of the Solicitor to the Advocate General

7 June 2013

[48] In this petition the petitioner seeks a review of a decision of the Secretary of State for the Home Department dated 19 May 2011. In that decision the Secretary of State refused to treat submissions made on behalf of the petitioner in a letter from his solicitors dated 4 May 2011 as a fresh claim for asylum in terms of Immigration Rule 353.

[49] I gratefully adopt the history of the petitioner's applications for asylum which fully set out by your Lordship. As your Lordship records, following on his return from Norway, in an earlier letter dated 11 April 2011, the petitioner's solicitors sought to make a fresh claim for asylum on his behalf on the basis of representations contained in that letter. In a decision letter dated 27 April 2011 the Secretary of State, while accepting that those representations had not been previously considered, refused to treat them as a fresh claim since, in her view, taken with the material already considered in the petitioner's claim, they did not create a realistic prospect of success before a tribunal. The petitioner did not seek a review of that decision.

[50] Thereafter the petitioner's solicitors, in the letter of 4 May 2011 sought to make a further fresh claim by repeating the gist of the representations made in the letter of 11 April and submitting certain further material. Subsequently in her decision letter of 19 May 2011 the Secretary of State refused to treat the letter of 4 May 2011 as a fresh claim on the ground that there was no realistic prospect of success before an immigration judge, or as she put it, no realistic prospect that an immigration judge applying anxious scrutiny would find that the production of the new information would in any way alter the original decision and subsequent AIT determination. By that was meant the refusal to grant asylum to the petitioner in 2006 and 2007.

[51] As your Lordship has already pointed out, Immigration Rule 535 provides that further submissions will amount to a fresh claim if they are significantly different from the material that has been previously considered. Submissions will only be significantly different if the content, (i) has not already been considered, and, (ii) taken together with previously considered material, creates a realistic prospect of success notwithstanding its rejection.

[52] In this case the Secretary of State accepted that the first test has been passed in relation to the material provided in the letter of 4 May 2011. She accepted that that material had not been previously considered. So the task for the Secretary of State was to decide whether, in relation to the letter of 4 May 2011, the new material, taken together with the 2006/2007 material and the material contained in the letter of 27 April, created a realistic prospect of success. That is the decision which is the subject of this review.

[53] Counsel for the petitioner began by arguing that the Lord Ordinary was wrong to hold that only the letter of 19 May was subject to review and that the letter of 27 April was unchallenged. In my opinion, agreeing with your Lordship, the Lord Ordinary's finding, while technically correct, was misconceived. The Secretary of State's task was to consider the new material contained in the petitioner's letter of 4 May 2011 along with the 2006/2007 material and the material contained in the letter of 11 April, and to consider whether it created a reasonable prospect of success. So all the material required to be considered by the Secretary of State in terms of rule 353, and the fact that the decision of 27 April had not been the subject of a review was of no significance.

[54] Counsel for the petitioner went on to argue that the Lord Ordinary was wrong to hold that the Secretary of State had been entitled to come to the view that the additional material sent with the letter of 4 May was not significantly different to the articles previously submitted with the letter of 27 April. That argument seems to me to miss the point. The Secretary of State accepts that the information provided with the letter of 4 May had not been considered before. All that remained was for her to go on to consider the question of the prospect of success. As Buckstone LJ said in WM (DRC) v SSHD [2006] EWCA 1495 at paragraph 11, in assessing the prospects of success before a tribunal, the Secretary of State can and should treat her own views of the merits as a starting point. So the Secretary of State had to apply her mind to the nature and quality of the material presented to her. She required to make a judgment on the effect of the material presented. The fact that she said that the additional material was not significantly different from articles previously provided, does not mean that the material was discarded or regarded as irrelevant. As I understand it the Secretary of State's position was that the material in the letter of 4 May was intended to be corroborative of the representations in relation to the petitioner's activities in Norway which had been made previously. The point they sought to make and the allegations to which they related were the same. As I have said, the Secretary of State's task was to consider all past and present material and consider whether the second test was met. In doing so, there was no obligation on her to take every piece of information at face value without applying a judgment to it. I find myself unable to see that the Secretary of State made an error of law in taking the view she did.

[55] It is important to bear in mind that the thrust of the new material in both of the letters of 11 April and 4 May was that the sur place political activity engaged in by the petitioner in Norway was likely to bring him to the attention of the authorities in Iran. The Secretary of State considered the nature and extent of those political activities in the light of the guidance set out in BA (Demonstrators in Britain - Risk on Return) Iran CG [2011] UKUT 36. She explains her reasons for concluding that it was unlikely that the authorities in Iran would be interested in the petitioner. She explains that the precise theme of the demonstration or demonstrations in which the petitioner claimed to have taken part was not clear, and that on the evidence presented he had not been anything other than a member of the crowd. Although he had apparently carried a banner, he could not be said to be a leader or an instigator. She concludes that he was unlikely to be of interest to the Iranian authorities. She explains why the news articles submitted did not amount to substantial evidence that the petitioner would be at risk on returning to Iran. One of them contained insufficient information as to the political profile of the individual concerned and the charges which he faced on return to Iran. In the other, the individual concerned had strong connections with a well known and constant critic of the regime. Accordingly they did not provide guidance as to what would be likely to happen to the petitioner.

[56] In the letter of 19 May the Secretary of State notes that the petitioner had not provided any information, apart from his own assertion, to indicate that his participation in anti-regime demonstration was frequent or regular. In that situation she declined to accept that he was a frequent participator. In my opinion that conclusion disclosed no error in law. As Buckstone LJ said in W M:

"... 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".

The immigration judge who heard the petitioner's claim in 2006 took the view that his evidence as to political activities in Iran was not to be believed. The Secretary of State was in my opinion entitled to have regard to the judge's finding on credibility in assessing the petitioner's own assertions in relation to the regularity of his activities in Norway.

[57] In the letter of 27 April, she notes that the new material did not challenge the previous tribunal finding in 2006 that the petitioner was not politically active to a significant level while he lived in Iran. She also notes that there was no evidence that the petitioner had engaged in political activity while he lived in the United Kingdom (a factor which is relevant to his contention that he could not be expected to cease is anti-regime activities if he were to be returned to Iran.)

[58] The question for the Secretary of State was not whether she herself thought that the new claim should succeed, but whether there was a realistic prospect of an immigration judge, applying the rule of anxious scrutiny, thinking that the petitioner would be exposed to a real risk of persecution on return to Iran. In my opinion, the Secretary of State considered that question. She carefully analysed the various factors which emerged from the material available to her and which I have set out above. She had had regard to all the material to which she should have had regard and, it seems to me, carefully examined it against the guidance provided by the decision in BA. In my opinion, the careful analysis contained in the two decision letters discloses that the Secretary of State approached the matter with anxious scrutiny. This court cannot take the decision out of the hands of the decision-maker. Our function is to consider whether she made any error of law. Having regard to the factors which I have set out, I cannot say that she did. I would refuse this appeal.