Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 107
P892/12	OPINION OF LORD JONES in Petition of ANR (Pakistan) Petitioner; for Judicial Review of decisions of the Secretary of State for the Home Department (i) dated 15 August 2012 to remove the petitioner from the UK on Tuesday 28 August 2012 and (ii) dated 31 August 2012. ________________

Petitioner: Forrest; Drummond Miller LLP

Respondent: MacGregor; Scottish Government Legal Directorate

28 June 2013

Introduction

[1] The petitioner avers that he is 31 years of age, and a national of Pakistan. According to his averments, on or about 19 January 1998, the petitioner entered the United Kingdom. He claimed asylum, but that claim was rejected in May 2000. He continued to reside in London, where he was required to report regularly to the immigration authorities. He did so until September 2003, when he disappeared. He was traced by the immigration authorities in July 2004, and new reporting instructions were issued, requiring the petitioner to report regularly to a different local immigration detention centre.

[2] In March 2010, the petitioner was imprisoned, having been convicted of certain motoring offences. On his discharge, he was transferred to immigration detention under the control of the respondent. On 16 August 2010, directions were issued for his removal from the United Kingdom, to be effected on 2 September 2010. On 25 August 2010, solicitors who were then acting for the petitioner wrote to the United Kingdom Border Agency, claiming, amongst other things, that his removal from the United Kingdom would disproportionately interfere with his right to a private life, in terms of article 8 of the European Convention on Human Rights. It is averred that these solicitors were unaware of any facts or circumstances which might give rise to any other claim. Following receipt of the letter of 25 August 2010, the respondent cancelled the removal directions, and the petitioner was released from detention. By letter, dated 1 September 2010, the respondent rejected the petitioner's article 8 claim, and issued a notice in terms of section 120 of the Nationality Immigration and Asylum Act 2002 ("the Act'), requiring him to make "a formal statement about any reasons why (he thought that he) should be allowed to stay in this country". (6/4 of process) The petitioner appealed the refusal of his claim and, in due course, his appeal was dismissed. His rights of appeal were exhausted as at 12 January 2011.

[3] On or about 2 March 2011, the petitioner was again detained. Directions were issued for his removal from the United Kingdom on 9 March 2011. On 4 March 2011, his present solicitors wrote to the respondent, intimating a fresh claim for asylum, on the ground that the petitioner feared persecution if returned to Pakistan, because he had converted to the Ahmadi religion in April 2008. (6/5 of process) On 8 March 2011, the respondent rejected his claim, and certified that, in terms of section 96(2) of the Act, there was no satisfactory reason why a claim that he would be persecuted on account of his religion was not raised earlier. (6/6 of process) The effect of such certification is to exclude an appeal against an immigration decision which would otherwise lie under section 82(1) of the Act.

[4] On 7 March 2011, a petition was lodged in this court on behalf of the petitioner, seeking judicial review of the respondent's decision to remove him from the United Kingdom on 9 March 2011. (6/7 and 6/8 of process) First orders were granted, the removal directions were suspended, and a first hearing was fixed for 9 June 2011. At the conclusion of the first hearing, the Lord Ordinary made avizandum. On 29 June 2011, the respondent withdrew the letter of 8 March 2011, and indicated that the petitioner's claim would be reconsidered. Thereafter, the petition was dismissed, of consent.

[5] On 12 October 2011, the respondent issued a new decision letter in place of the one dated 8 March 2011. (6/2 of process) She rejected the fresh claim for asylum which had been submitted on behalf of the petitioner, and she again certified his claim in terms of section 96(2) of the Act. She also certified his claim in terms of section 96(1) which has the same effect as a section 96(2) certificate. (6/2 of process) The respondent's decision to certify in terms of section 96(1) and 96(2) is the subject of challenge in this application for judicial review.

[6] On 15 August 2012 the petitioner was detained by the immigration authorities and sent to Dungavel House, Immigration Detention Centre, Strathaven. On the same day, the respondent issued a decision to remove the petitioner from the United Kingdom on Tuesday 28 August 2012, and, by letter dated 15 August 2012, the petitioner was advised that his removal would be suspended only on "the Order or Direction of the court." (6/1 of process)

The present application

[7] Following his detention, the petitioner's solicitors raised fresh proceedings for judicial review ("the second petition"), challenging the respondent's decision of 15 August 2012 to remove the petitioner from the United Kingdom on 28 August 2012, and the section 96(1) and (2) certifications of 12 October 2011. On 24 August 2012, the Lord Ordinary granted first orders, and an order suspending the removal directions ad interim. On 31 August 2012, the respondent issued a fresh decision letter which, once again, contained section 96(1) and (2) certifications. (6/10 of process) She stated in this letter that it replaced previous decision letters (including her letter dated 12 October 2011).

[8] Following receipt of the letter of 31 August 2012 (to which I shall henceforth refer as" the decision letter"), the second petition was amended. The matter came before me for a first hearing on 28 November 2012.

The decision letter

[9] The relevant parts of the decision letter are in the following terms:

"11. It is not accepted that your client has genuinely converted to the Ahmadi faith. Your client had an appeal hearing on 12 November 2010, represented by Counsel, where he failed to mention that he had changed his religion. It is understood that your client's explanation for his failure to mention his conversion at that appeal hearing is that 'at no time was (he) advised in any appeal marked against the decision of the respondent dated 1^st September 2010 to state any additional grounds. His solicitors did not advise him to do so.'

12. Whilst that explanation is very far from a satisfactory one for the purposes of s 96, it is also considered to be one which significantly detracts from his credibility. Firstly, he is already a failed asylum seeker who can be taken to have at least some knowledge of seeking international protection and what asylum means. On that basis it cannot be said that he was unaware of the possibility of seeking international protection due to a fear of persecution in his own country.

13. Secondly, he is a citizen of Pakistan and would plainly be aware of the significance of converting from one of the two main strands of Islam to the Ahmadi faith. Your own objective evidence provided with your letter of 16 August 2012 sets out some of the problems experienced by practitioners of that faith. Given that he converted over 2 years prior to his human rights claim and appeal it is simply inconceivable that he would not have thought that this was of significance to his claim to remain in the UK. Neither is it at all clear why he would have thought that he would needed to have been asked about it by his solicitors before disclosing his conversion. Moreover, his statement, made in connection with his claim of 4 March 2011, clearly shows an awareness of the significance of his claimed conversion and the risk that this might put him under generally and if he preaches that faith on return to Pakistan. On that basis, and in the absence of any sensible explanation from your client, it is considered entirely reasonable that he would have been aware of the significance of his conversion in November 2010 when he had his human rights appeal. His failure to mention it until just before his removal in March 2011 is considered to detract from his credibility.

14. Thirdly, your client's human rights claim was made on the basis of both a family and private life established in the UK. For neither of those limbs of Article 8 can it be said that his conversion to the Ahmadi faith was irrelevant. For example, as our letter of 12 October 2011 sets out, your client now avers that his claimed conversion to the Ahmadi faith has put him at risk from various family members who object to it. In your client's witness statement for his appeal in November 2010 he sets out in relative detail information about his family in Pakistan. That statement refers to the concern of his family for his safety following the death of his brother due to political violence in Pakistan. It is striking that nowhere in that statement does your client express a fear of his family despite the fact that, by that stage, he had allegedly converted to the Ahmadi faith about 21/2 years ago. It has not been claimed that they only recently became aware of his conversion. The absence of any reference in that statement to problems that he might have experienced with his family following his conversion to the Ahmadi faith, is also considered to significantly detract from the credibility of his claim. This is particularly so as it is now claimed that they would be one of the potential agents of persecution in his latest claim.

15. Furthermore it is noted that your client in his witness statement states that he would be unable to relocate in Pakistan because his cousin ... has added his name to the list of the most wanted persons [at Lahore Airport]. This would lead to his arrest on arrival back in Pakistan. In light of what is said above about the inconsistent evidence (or lack of evidence at various times) about his family's position concerning his conversion, it is not accepted that his cousin has placed him on a wanted list, should one exist. Whilst it is noted that there is an Exit Control List in Pakistani that appears to be a device for preventing particular classes of Pakistani nationals from leaving the country. Your client does not fit into any of those categories nor would he be attempting to leave the country, although the possibility that it might be used to establish if someone has re-entered the country cannot be excluded. In any event it is not accepted that it is reasonably likely your client has been placed on any wanted list in Pakistan following his claimed conversion to the Ahmadi faith.

16. It is also noted that another cousin, also made no reference to your client's apparent conversion to the Ahmadi faith or to any of his difficulties with his family in Pakistan in her statement for his appeal in November 2010, in fact, given that his claim to remain in the UK at stage was in part rested on his claimed family life with family members in the UK, some of whom he still resides with, it is again striking that there is no evidence of either their support for his conversion, or animosity to it, whichever might be the case.

17. However, your client's appeal against the decision to remove him in November 2010 also proceeded on the basis that any removal would be a disproportionate interference with his private life. It is obvious that any involvement in a religion would form part of any private life established in the UK. It is clear from your client's witness statement given in support of his claim in March 2011 that he claims to have been significantly involved in the Ahmadi community, particularly when he was resident in London, where he was until the end of 2009. In particular he claims to have had a responsibility for receiving guests 'from different cities in the UK or sometimes different countries of the world and taking them over to Jalsa Gha, Tilford, Islamabad, Surrey and showing them the offices and the graves of 4th Caliph Hz, Mirza Tahir Ahmed and also Hadiqa Tul Mahdi (over new Jalsa Gha)'.

18. 1t is clear therefore that he claimed to have a role of relative importance within the Ahmadi faith in the UK which clearly was relevant to his private life. Despite this your client chose not to offer any substantial evidence of any private life he established in the UK at his appeal, let alone offer any evidence of his involvement in the Ahmadi faith. As the Immigration Judge found at para 13(j) of his determination

'The difficulty for the appellant is the paucity of information about private life contained in his evidence. It is clear that the appellant changed address many times whilst living in London. The evidence indicates that the appellant embarked upon a course of education which he was not able to complete, but no other evidence of the establishment of private life is led. I have no evidence placed before me of the appellant's integration into UK society, no evidence of his contribution to MS local communities (neither in London or in Motherwell), no evidence of either possessions or activities.'

19. Given that a conversion to a different religion (which in the context of Pakistan this conversion would have had particular significance) and that he now claims in his witness statement that this 'deeply affected (his) heart', his failure to mention this in his last appeal even in the context of his private life is striking.

20. In support of his claimed conversion to the Ahmadi faith your client has supplied a letter from the Ahmadiyya Muslim Association UK (AMA UK) dated 24 February 2011. That letter states that your client is 'is an Ahmadi who accepted our faith and joined the community on 30th June 2008.' It is noted that in his undated statement appended to the further submissions of 4 March 2011 he says that he 'accepted Ahmadiah in April 2008.' It is noted that your client's evidence of when he joined the Ahmadi faith it not consistent with what the AMA UK said. No explanation for this inconsistency has been proffered by your client. It is also noted that whilst the address given by the AMA UK for your client is one held by UK Border Agency (save for a slight inconsistency with the post code) it is noted that this is not an address which your client has claimed to have lived at since February 2009 - two years before their letter. Indeed, your client appears to have been in Lanarkshire since the end of 2009, It is entirely unclear why the AMA UK would not hold an up to date address for your client if he is, or ever was, an active practitioner of their faith. The fact that the AMA UK do not hold an up to date address for your client is indicative of him either no longer being involved in that organisation or that if he ever was, which is denied, that the extent of his involvement is not as significant as he claims in his statement. Moreover, whilst the letter from the AMA UK is dated February 2011 a striking feature of his case is that he offers no evidence of any current involvement with that community in Scotland.

21. As is well established it is for an applicant to establish that a document which they seek to rely on is one upon which weight should be placed - Tanveer Ahmed. Looking at your client's evidence in the round, which includes all of the difficulties in his evidence referred to above about his failure to mention his conversion at his appeal in November 2010, the difficulties with the letter from the AMA UK as well as his overall immigration history it is not considered that your client has established that the letter from the AMA UK is one which should have weight placed on it.

22. For all these reasons it is not accepted that your client has genuinely converted to the Ahmadi faith nor is it accepted that his family in Pakistan wish to do him harm as a result. In particular it is not accepted that he has been placed on a wanted list.

...

31. Your client's further submissions dated 4 March 2011 are therefore rejected even though it is accepted that they pass the modest hurdle needed to make out a fresh claim. Moreover, that claim is also certified under s 96(1) and (2) of the Nationality, Immigration and Asylum Act 2002. That section is in the following terms:

(1) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies-

(a) that the person was notified of a right of appeal under that section against another immigration decision ("the old decision") (whether or not an appeal was brought and whether or not any appeal brought has been determined),

(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.

(2) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies-

(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice,

and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice.

32. 1t appears not to be in dispute that for the purposes of s 96(1) your client was notified of an earlier appeal right, or that for the purposes of s 96(2) he was served with a notice under s 120 of the 2002 Act in connection with the decision to refuse his human rights claim on 1 September 2010. His right of appeal was exercised and his subsequent appeal against that decision to remove him as an illegal entrant was dismissed by an Immigration Judge on 22 November 2010.

33. It is also presumably common ground that in an appeal against an immigration decision under s 82(2)(h) of the 2002 Act an appellant is entitled to raise any of the grounds of appeal contained in s 84 of that Act. Section 84(1)(g) provided your client with an opportunity to claim that his appeal should be allowed on the basis that his removal would cause the UK to be in breach of their obligations under the Refugee Convention. Given that your client claims to have converted to the Ahmadi faith in April 2008 and his appeal was not heard until November 2010, it is clear that your client could have raised in his grounds of appeal that his removal would be contrary to the Refugee Convention. It is presumably common ground that he did not. It is also presumably common ground that he should have raised his conversion in response to the s 120 notice that he was served.

34. Your client in his witness statement made in connection with his claim of 4 March 2011 chose not to give any explanation for his failure to raise his fear of persecution at his prior appeal. In fact to date he has still chosen not to give any direct evidence to the Secretary of State for his failure. As referred to above, it is noted that in a second minute of amendment to his last petition for judicial review an explanation of sorts was provided. Consideration has been given to the amended Article 7 of that petition. His explanation, after setting out the history of who acted for him at various times between August and October 2010, appears to be at 'no time was (he) advised that he required in any appeal marked against the decision of the respondent dated 1st September 2010 to state any additional grounds. His solicitors did not advise him to do so'.

35. For the following reasons this is not accepted as a satisfactory or reasonable explanation. It is acknowledged in Article 7 of the amended petition that your client was served with a Notice of Decision which included a "One Stop Warning" and Statement of Additional Grounds. Consequently, he was aware that

• He must now make a formal statement about any reasons why he should be allowed to stay in the UK. That included any reasons why he wished to stay here, any grounds why he shouldn't be removed or required to leave.

• That he should give those reasons on his Notice of Appeal.

• That he did not have to repeat earlier reasons but should notify us of any more reasons he might have.

• That if he didn't tell us at that stage he may not be able to raise any further appeal.

• That the requirement to give us reasons was an ongoing requirement.

36. Despite being made aware of the need to advise the Secretary of State, or the Tribunal, of any reason why he should be allowed to remain in the UK he chose not to, at that stage, disclose that he had allegedly converted to the Ahmadi faith. It is unclear, given the terms of the "One Stop Warning", which he accepts he received, why your client would have felt the need to require advice before referring to that ground in his grounds of appeal or to have given a response to the s 120 notice at some other stage.

36. (sic) Moreover, in light of what is said in paragraphs 12 - 19 of this letter it is considered that his explanation for failing to mention his claimed conversion is deeply unsatisfactory. As explained above it is inconceivable that he would not have mentioned his conversion given its potential significance to a Pakistani national, who was already a failed asylum seeker. Moreover, it would plainly have been a relevant factor in his private life with some significance to any claimed family life he might have both in the UK and in Pakistan. His explanation that he was not advised to mention his conversion is therefore not accepted as a satisfactory one for all the reasons given above.

37. Finally, consideration has been given to whether the issuing of a certificate under s 96(1) or (2) is an appropriate exercise of discretion. Whilst it has been accepted that your client has done just enough to make out a fresh claim for the purposes of paragraph 353, his claim to have converted to the Ahmadi faith otherwise appears to be opportunistic and merely an attempt to frustrate removal. The merits of it, notwithstanding that it surpasses the modest hurdle set out in paragraph 353, are considered to be poor and his claim lacking in credibility. Your client's explanation for failing to mention the conversion earlier have been considered to be very unsatisfactory and he has failed since March 2011 to provide any further evidence to make his claim out. In light of the above and after having given the matter anxious scrutiny, it is considered that in all the circumstances it is appropriate to issue a certificate under s 96(1) and (2) of the 2002 Act. The consequence of this is that your client is not entitled to appeal against this decision."

Submissions for the petitioner

[10] At the commencement of his address, Mr Forrest, advocate, advised me that he no longer sought reduction of the letter of 15 August 2012. He submitted on behalf of the petitioner that the respondent had erred in four respects. During the course of the discussion, he departed from the first of these. The remaining three are as follows:

1. The respondent has failed to take into account the relevant circumstances in evaluating whether it was reasonable for the petitioner to have failed to say, in 2010, what had happened in 2008.

2. Having concluded that there was no satisfactory reason for the petitioner's having failed, in 2010, to mention his conversion to the Ahmadi faith in 2008, the respondent was wrong to certify in terms of section 96, without having decided that it was appropriate to do so. She had failed, therefore, properly to exercise her discretion.

3. The respondent failed to exercise her discretion lawfully, because she had failed to exercise anxious scrutiny.

[11] In elaboration of these contentions, Mr Forrest argued that the reasons given in paragraphs 12 to 19 of the decision letter, which he categorised as its "central part", were not reasons for concluding that no satisfactory reason had been given by the petitioner for not mentioning that he had converted to the Ahmadi faith in 2008. Rather, submitted Mr Forrest, they were either reasons for saying that the claim should not succeed or that the claim had no reasonable prospect of succeeding.

[12] On the exercise of discretion point, Mr Forrest drew my attention to paragraph 37 of the decision letter, and to R (J) v The Secretary of State for the Home Department [2009] EWHC 705 (admin) ("R (J)"). In R (J), as in this case, the claimant sought judicial review of a decision made by the defendant to certify the claimant's asylum and human rights claims under section 96 of the Act. In her written submissions, counsel for the claimant advanced, among others, the following contentions:

"The Secretary of State has discretion over whether to certify a claim under section 96 of the 2002 Act. The Secretary of State has failed to have regard to that discretion in the Claimant's case but has erroneously treated the question of whether the Claimant relied on a "matter" which "could have been raised" earlier as determinative of the question of whether to certify.

The test of whether there is a satisfactory reason under section 96(1)(c) or section 96(2)(c) requires the decision maker to consider whether the underlying claim has merit or conversely is a spurious claim brought solely to delay removal. The Secretary of State failed to have regard to underlying merit when determining that the Claimant had no satisfactory reason." (Paragraph 102)

[13] In the course of addressing these submissions, Stadlen J said this:

"Under Section 96 (1) and (2) before the Secretary of State can lawfully decide to certify, she has to go through a four stage process. First she must be satisfied that the person was notified of a right of appeal under Section 82 against another immigration decision (Section 96(1)) or that the person received a notice under Section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision (Section 96(2)). Second she must conclude that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision (Section 96(1)(b)) or that the new decision relates to an application or claim which relies on a matter that should have been but has not been raised in a statement made in response to that notice (Section 96(2)(b)). Third she must form the opinion that there is no satisfactory reason for that matter not having been raised in an appeal against the old decision (Section 96 (1) (c)) or that there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice (Section 96 (2)(c)). Fourth she must address her mind to whether, having regard to all relevant factors, she should exercise her discretion to certify and conclude that it is appropriate to exercise the discretion in favour of certification." (Paragraph 106)

[14] The respondent's failure in this case, argued Mr Forrest, lay in not giving reasons for thinking that there was no satisfactory reason for the petitioner's having failed to mention his conversion, at the material time. Such reasons must be wider than simply saying that, as a matter of fact, one claim arose before the other. Whether a reason is satisfactory has to be determined having regard to all of the relevant circumstances. These include the possible consequences to the petitioner of being removed without a hearing. The respondent was at fault in failing to take into account the possibility that failure by his previous representatives, such as not telling him about the effect of a section 120 notice, might be a satisfactory reason. When it came to the question of how she should exercise her discretion, the respondent did not apply anxious scrutiny to the consideration of the issues which she had to determine, because she did not take into account the reason why the petitioner did not respond to the one stop notice or raise the matter of his conversion at the appeal. For these reasons, submitted Mr Forrest, the decision under challenge should be reduced.

Submissions for the respondent

[15] In reply, Mr MacGregor, advocate, for the respondent submitted that counsel for the petitioner was wrong in asserting that the respondent had provided no reasons for certifying. She had done so, and the question was whether those reasons were sufficient. That question was one of entitlement, and the court would interfere with the respondent's certification only if her decision had been Wednesbury unreasonable. That cannot be said in this case, and I should dismiss the petition. In the course of his argument, Mr MacGregor referred me to paragraph 138 of R (J); paragraphs 23 and 24 of H v Secretary of State for the Home Department 2012 SLT 1004; and paragraphs 17 and 20 of R (EP) v Secretary of State for the Home Department [2010] EWHC 2471.

Discussion

[16] In scrutinising the respondent's decision-making process, I have found it helpful to have in mind the four stage process identified by Stadlen J in R (J). In this case, the respondent was satisfied both that the petitioner was notified of a right of appeal under section 82 against an earlier immigration decision and that he had received a notice under section 120 in connection with the decision to refuse his human rights claim on 1 September 2010. (Decision letter, paragraph 32) Neither finding was disputed. She concluded that the claim to which the new decision relates relies on a matter, the petitioner's conversion to the Ahmadi faith, which could have been raised in an appeal against the old decision, and in response to the one stop notice. (Decision letter, paragraph 33) These conclusions are not controversial. In my view, it is clear from the terms of the decision letter that the respondent formed the opinion that there was no satisfactory reason for that matter not having been raised in the appeal against the old decision and that there was no satisfactory reason for that matter not having been raised in a statement made in response to the notice. The only reason given by petitioner for not having mentioned his conversion at the appeal hearing on 12 November 2010, where he was represented by counsel, was that at no time was he advised to state any additional grounds. (Decision letter, paragraph 11) The respondent held that the petitioners explanation "significantly detract(ed) from his credibility". She gave two reasons for so doing, the first being that, in the circumstances, it could not be said that petitioner was unaware of the possibility of seeking international protection due to a fear of persecution in his own country. (Decision letter, paragraph 12) The second reason is that, as a citizen of Pakistan, he would plainly be aware of the significance of converting from one of the two main strands of Islam to be Ahmadi faith. In the circumstances, the respondent found it "simply inconceivable that he would not have thought that (his conversion) was of significance to his claim to remain in the UK".

[17] During the course of the hearing before me, Mr Forrest accepted that an assessment of the petitioner's credibility was relevant to the question whether he had given a satisfactory reason. As Stadlen J put it in R (J), in a passage to which I was referred in argument:

"In assessing the tendered explanation in my view the Secretary of State should do so among other things by reference to the impact that the explanation has on the credibility of the fresh claim. If the explanation is on reasonable grounds considered to be so slight or non existent as to be inconsistent with a genuine fear of persecution or harm it may well be one which she is entitled to say is not satisfactory and lead to certification even if the claim is an asylum or Article 3 claim and there is some new element in it."

[18] Against that background, and contrary to Mr Forrest's contentions, the respondent fully sets out her reasons for finding that the petitioner's explanation for not having raised the matter of his conversion earlier than he did was not satisfactory. They can be found at paragraphs 35 to 37, inclusive, of the decision letter. Having regard to these reasons, based on the material that was before her, I have no doubt that she was entitled to conclude that the petitioner had given no satisfactory reason for his conversion not having been raised in the appeal against the old decision and not having been raised in a statement made in response to the section 120 notice. Looked at in Wednesbury terms, I am clearly of the view that it cannot be said that the respondent's decision was so unreasonable that no reasonable Secretary of State could have reached that decision on the material available to the respondent.

[19] There remains, therefore, only the question of the exercise of discretion. As I have noted, Mr Forrest's argument is that the respondent failed to apply anxious scrutiny in considering whether she should exercise her discretion, because she did not take into account the petitioner's reason why he did not respond to the section 120 notice. I reject that criticism. It is clear, in my opinion, that the respondent considered the petitioner's explanation, and rejected it on the ground, among others which I have noted above, that "it is inconceivable that he would not have mentioned his conversion given its potential significance to a Pakistani national, who was already a failed asylum seeker." (Decision letter, paragraph 36) Having so concluded, as, in my judgment she was entitled to do, the respondent went on to consider whether the issuing of a certificate under section 96(1) or (2) was an appropriate exercise of discretion. She concluded that the petitioner's claim appeared to be "opportunistic and merely an attempt to frustrate removal". Once again, that was a view to which she was entitled on the material before her and there is no basis on which it could properly be said that she failed to apply anxious scrutiny in reaching it.

[20] I am conscious that I have not yet dealt with Mr Forrest's argument that whether a reason is unsatisfactory has to be determined having regard to, among other things, the possible consequences to the petitioner of being removed without a hearing. I accept that that is a matter which ought to be considered by the respondent at some point during the four stage process. (See R (J), paragraph 137) In this case, the respondent gave consideration to the relevant possible consequences. At paragraph 23 of the decision letter, she referred to the case of RJ and ZM (Ahmadis - risk) Pakistan CG [2008] UKAIT 00033, in which the tribunal said this:

"(ii) In Pakistan as a whole, whilst it is clear that from time to time local pressure is exerted to restrict the building of new Ahmadi mosques, schools and cemeteries, and that a very small number of Ahmadis are arrested and charged with blasphemy of behaviour offensive to Muslims, the number of problems recorded is small and has declined since the Musharraf Government took power. Set against the number of Ahmadis in Pakistan as a whole, they are very low indeed. The courts do grant bail and all appeals against blasphemy convictions in recent years have succeeded.

(iii) There is very sparse evidence indeed of harm to Ahmadis from non-state agents. The general risk today on return to Pakistan for Ahmadis who propagate the Ahmadi faith falls well below the level necessary to show a real risk of persecution, serious harm or ill-treatment and thus to engage any form of international protection."

[21] Having had regard to these passages, the respondent expressed the following view:

"24. Bearing in mind the non acceptance of your client's conversion to the Ahmadi faith, coupled with the findings in the above country guidance case it is considered that your client would not be at serious risk on return to Pakistan. His removal would not place the United Kingdom in breach of its obligations under the European Convention on Human Rights or the

Refugee Convention."

[22] It is clear, therefore, that the respondent took into account the possible consequences of petitioner's being removed without hearing. In my judgment, she was entitled to come to the view which she did, and it cannot properly be said that she acted unreasonably in so doing.

Decision

[23] For the foregoing reasons, I shall dismiss the petition and reserve all questions of expenses.