Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 39

P752/16

OPINION OF LORD BOYD OF DUNCANSBY

In the petition

JA

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner:  Haddow;  Drummond Miller LLP

Respondent:  Massaro; Office of the Advocate General

10 March 2017

Introduction
[1]        The petitioner is a citizen of Iran.  This is a judicial review of a decision of the Secretary of State dated 13 May 2016 that a fresh submission does not amount to a fresh claim under Immigration Rule 353.  The petitioner seeks reduction of the decision.

Immigration History
[2]        The petitioner’s full immigration history is set out in the Secretary of State’s decision letter dated 13 May 2016.  In short the petitioner entered the UK on 8 April 2008 and claimed asylum the same day.  He claimed to have deserted form the Iranian military.  His claim was rejected.  He appealed against the decision and that was rejected by Immigration Judge (IJ) Wood in a decision dated 21 June 2010.  Further submissions were made by the petitioner on 2 June 2014 (the 2014 submissions).  These were rejected on 17 June 2014.  The submissions which led to the Secretary of State’s decision were made on his behalf on 22 January 2016 (the 2016 submissions).

Background
[3]        The petitioner who is Kurdish says that he joined the Iranian military at the beginning of 2007.  He had initial training for 3 months during which he was trained how to guard military points and given training on the day to day requirements of military service and rank structure.  He was then transferred to a military base near Tehran where he undertook guard duty.  After 10 or 11 months he was told that he was to be taken to another country for a secret mission.  As part of a group of 28, he was flown to Damascus.  He was told that their task was to help Hezbollah as part of the Islamic forces against the Jews.  They were shown propaganda films but were not given any further training.  The petitioner became scared as he did not wish to kill anyone.  He then deserted finally making his way to the UK.

[4]        The immigration judge did not believe his story.  He concluded as follows:

“34.     Although this Appellant has been able to demonstrate some knowledge about the military, I find that I am not satisfied, even to the lower standard, that he has spent any significant time in military service.  I am not satisfied that he was selected for a secret mission of that he went to Syria in that connection.  I do not believe that he is a deserter who fears being monitored by the Iranian Intelligence Service or that any danger might befall his family through any efforts he might make to contact them,.  The Appellant appears to have provided a completely fabricated account and the gaps in his knowledge about the military have been clearly exposed.  Had he spent fifteen months in the military before going to Syria, then he could reasonably be expected to be more consistent in his replies about matters that were part of his everyday life.

35.       It seems to me to be wholly implausible that a conscript with only rudimentary training and with less than 6 months service remaining should have been selected for a secret mission broad.  Even in relation to the period of service remaining, the Appellant’s account is inconsistent with the background information, which indicates that military service is for a period of 18 months.

36.       The only risk to this Appellant is if he has left Iran illegally.  However, he has produced no credible evidence that this is the case and, even if that were so, I am not satisfied that he would face persecution or inhuman treatment or punishment on his return,.  Accordingly to his account, he left Iran lawfully, while under orders.  He does not require humanitarian protection.”

[5]        At paragraph 33, the immigration judge sets out nine reasons for his decision that the petitioner was not a credible witness.  The fourth reason addressed the issue of a secret mission in Syria.  In respect of that matter, the immigration judge found that:

“I do not find it consistent that soldiers such as the appellant, with only the most basic of training, should then be expected to fight without additional training in weapons and tactics.  I do not accept that the appellant was in Syria for a secret military mission.”

[6]        With the 2014 submissions, the petitioner’s agents had submitted a report from Dr Kakhki, an acknowledged expert on Iran.  He addressed the issue of military service in Iran.  In particular he observed that a conscript can be appointed to a range of duties and cannot predict their future role during military service.  In the refusal letter of 17 June 2014 the Home Office pointed out that this was a general comment and did not contradict the specific finding of IJ Wood noted above.  In his submissions counsel for the petitioner accepted that this was a correct approach by the Secretary of State.

[7]        The Secretary of State also observed that the report appeared to have been written when President Ahmedinejad was in power.  She noted however that there had been general elections in Iran which had seen the election of the more moderate Hassan Rouhani as President.  The implication appears to be that the risk on return would lessened as a result of his election.

[8]        The 2016 submission included another report by Dr Kakhki dated 7 October 2015.  That sought to address the issues raised in the refusal letter of 17 June 2014.  At page 2 Dr Kakhki states that the Iranian regime is known to support the Syrian government through the provision of armed forces at various levels, including ordinary soldiers, officers and foreign refugees some of whom had only been provided with a weeklong weapons training course.  He cited a report dated 25 August 2015 headed “Iran sending Afghan refugees as cannon fodder for Ahsad”.  He quoted another report dated 22 August 2014 in which it was stated that 60 revolutionary guards had lost their lives in Syria since 2011.  Dr Kakhki noted that they were described as “Sarbaz” in the Iranian media which means ordinary conscript soldier.

[9]        Dr Kakhki observed that the situation faced by the petitioner must be distinguished from “draft dodger”.  That is because he was allegedly on duty in a war zone when he deserted.  Such draft evasion normally has a detrimental effect on the external security of the country which would be taken into consideration when determining the appropriate punishment.  In his opinion it is highly unlikely that the petitioner’s case would be treated leniently (liable for the payment of a fine).  Such offenders are usually faced with the harshest penalties available for their offence.  Dr Kakhki then quotes an account which he said demonstrated that those who disobey their commander’s orders may face torture and imprisonment for their actions.

[10]      Dr Kakhki noted at some length that, despite the election of President Rouhani the human rights situation in Iran has deteriorated.  He cited a number of reports including comments from the UN Secretary General.  He also quoted reports of torture of Kurds in captivity.  On report was of a Kurdish soldier who had died under torture following his arrest during an investigation.

[11]      Dr Kakhki’s report is dealt with in the Secretary of State’s letter of 13 May 2016 as follows:

“The expertise of Dr Kakhki is not doubted as regards his findings that you would be at risk on return to Iran if your account of event is believed to be credible.  However you have been found not to be credible to the extent that your account of events appeared to be ‘completely fabricated’ when heard at appeal on 21 June 2010, therefore no weight could be given to this document.”

Submissions
[12]      Both parties submitted notes of argument which were supplemented by oral submissions.

Petitioner’s Case
[13]      Mr Haddow’s primary submission was that the Secretary of State was wrong to treat Dr Kakhki’s report as only addressing the risk to the petitioner on return to Iran.  She had failed to recognise that the information within the report undermined several of the findings on which the assessment of the petitioner’s credibility is based.  He described the situation on which the petitioner found himself as a “catch 22”.  No weight was given to the report because of the assessment of credibility but the assessment of credibility could not be attached because no weight could be given to the report.

[14]      Even if the credibility assessment is not overturned, Mr Haddow submitted that the petitioner is at risk on return to Iran.  An immigration judge would be bound by two country guidance cases namely SB (Risk on return – illegal exit) Iran CG [2009] UK AIT 0053 and SSH and HR (Illegal exit:  failed asylum seeker) Iran CG [2016 UKUT 00308 (IAC).  It was accepted that simply leaving Iran illegally or being a failed asylum seeker will not trigger treatment that constituted persecution or serious harm.  But there were a range of other factors which might trigger such a response;  SB headnote (ii)-(v) and an  immigration judge would look at potential risk factors including avoidance of conscription, escape from military service, length of the petitioner’s absence from Iran, being sought for military offences and the petitioner’s ethnicity.  Some of these factors rely on objective evidence and not just the petitioner’s account.  It was accepted that the petitioner’s ethnicity (Kurdish) by itself was not sufficient of triggering a risk of persecution but it will be an aggravating factor.

[15]      Finally it was submitted that the reasons given by the Secretary of State in the decision letter were inadequate.

Respondent’s Submissions
[16]      Mr Massaro submitted that the new material was not significantly different from what had been submitted before and accordingly the Secretary of State need go no further;  WN(DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 per Buxton LJ at paragraph 6.  He submitted that the new report from Dr Kakhki was not significantly different from the matter contained in the 2014 report.  In any event even looking at the report it did not substantially disturb the findings of the immigration judge.  Dr Kakhki’s report was predicated on the proposition that the petitioner had been in the military.  However, the immigration judge at paragraph 34 of his decision had found that the petitioner had not spent any significant time in the military.  So far as anxious scrutiny is concerned the petitioner’s letter submitting Dr Kakhki’s report was very brief and did not indicate that what it was he was relying upon.  In those circumstances the Secretary of State was not obliged to fish through the report to find material in the petitioner’s favour;  YH v Secretary of State for the Home Department 2016 CSOH 72 per Lady Wolffe at paragraphs 89 to 96.  As for the adequacy of reasons, he referred me to R (Iran) v Secretary of State for the Home Department 2005 EWCA Civ 982 at paragraphs 13 to 16.  He submitted that the  country guidance cases did not assist the petitioner.

[17]      So far as the petitioner’s credibility was concerned, that had been dealt with in detail by IJ Wood at paragraphs 33 to 36.  That was the starting point for the assessment of the petitioner’s credibility and any immigration judge would be bound by the assessment of credibility Devaseelan v The Secretary of State for the Home Department 2002 UKIAT 702 at paragraphs 39 to 42.  The new material could not disturb the findings on credibility.

Decision and Reasons
[18]      I find that the submissions made in 2016 are not sufficiently different from the material that has previously been considered to constitute a fresh claim.  The submission consisted of a covering letter together with a letter from Dr Kakhki addressed to the agents dated 7 October 2015.  The letter is described as an update on the risk of return with particular attention to the issues raised in the most recent Home Office refusal letter dated 17 June 2014.  Reading that letter as a whole, it is written as a response to the decision letter advancing clarifications and supplementary material.  That is outlined above.  The central issue is whether Dr Kakhki’s opinion that the Iranian regime is known to support the Syrian Government through the provision of armed forces at various military ranks including ordinary soldiers, officers and foreign refugees, some of whom are only provided with weeklong weapons training constitutes significantly new material.  The 2014 report by Dr Kakhki deals with operations by Sepah-e-Pasdaran (Iranian Revolutionary Guard) operations in other countries.  At page 14 Dr Kakhki reports that it is not plausible that the estimated 15,000 personnel involved in foreign operations would be entirely composed of permanent members of the Revolutionary Guards.  Rather it was possible that they would consist of conscripts or other temporary members who may have been trained and assigned for these foreign missions.  This appeared to be consistent with the Iranian strategy of minimal exposure by using lower profile militia such as conscripts who have received basic training rather than all members of such units being explicit and identifiable members of the elite Revolutionary Guard.  It seems to me clear that the 2014 submission included information that Iran used conscripts with basic training for operations abroad.  While that was not specifically linked to Syria it might nevertheless challenge the finding by IJ Wood who found it incredible that Iran would use a conscript with only basic training for a secret mission in Syria.

[19]      The other central theme of Dr Kakhki’s 2015 letter is to dispute the extent to which the election of Mr Rouhani as President of Iran has impacted on human rights.  However I do not see this issue as being central to the question of whether the petitioner has been found to credible or not.

[20]      Accordingly I am not satisfied that Dr Kakhki’s supplementary report contains material that was significantly different to the 2014 decision.  While it is of course perfectly proper for those seeking asylum to take issue with decisions of the Secretary of State, particularly where there is a change of circumstances or where there has been a fundamental misunderstanding of the material placed before her, a decision letter should not be seen as an opportunity to commence a dialogue with the Secretary of State.  It is, subject to any right of appeal, final unless the provisions of Immigration Rule 353 are met.

[21]      Even assuming that Dr Kakhki’s report contains new material I am not satisfied that there is a realistic prospect of success before an immigration judge.  The possibility that the petitioner may have been sent to Syria with only his basic training to carry out a secret mission is only relevant if he was a member of the Iranian military and in particular Sepah-e-Pasdaran.  However IJ Wood specifically finds that he was not a member of that organisation and he was not satisfied that he had spent any significant time in military service.

[22]      Turning the country guidance cases cited by Mr Haddow, I make the following observations.  First, this is not a ground in the petition though Mr Massaro took no point on it.  Secondly, SB was an extant country guidance case at the time of  IJ Wood’s decision. It is not suggested that his decision is inconsistent with that guidance.  Mr Haddow relies on headnotes (ii) and (iv).  Headnote (ii) notes that Iranians facing enforced return do not in general face a real risk of persecution or ill-treatment.  That remains the case even if they exited Iran illegally.  That is not a significant risk factor although it could be a factor adding to the level of difficulties if that person would face problems with the authorities for other reasons.  In my opinion, there is nothing there which assists the petitioner.  Headnote (iv) relates to being a person involved in court proceedings in Iran who is engaged in conduct likely to be seen as insulting either to the judiciary or the justice system or the government or to Islam constitutes a risk factor indicating an increased level of risk of persecution or ill-treatment on return.  It has not been suggested that the petitioner is involved in court proceedings.  Mr Haddow also relied on paragraph 11 of  SSH and HR which relates to the risk in the course of initial questioning and detention.  Again I am not satisfied that there is anything within that paragraph which is of material assistance to the petitioner.

[23]      Finally, the petitioner submits that the reasons given by the Secretary of State were not adequate.  That ground was pressed rather weakly by Mr Haddow.  In my opinion the reasons given were cogent and sufficient for a reader to be informed as to the reasons for the Secretary of State’s decision.

[24]      I shall sustain the second and third pleas-in-law for the respondent and repel the plea-in-law for the petitioner and refuse the petition.  I shall reserve questions of expenses.