United Kingdom Asylum and Immigration Tribunal

H-JA-V2 CC

Heard at Field House

[2003] UKIAT 00079 G (Iran)

On 8 August 2003

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified:

18^th September 2003

Before:
Mr J A O'Brien Quinn QC (Chairman) Mr N Kumar JP

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

APPELLANT

and

RESPONDENT

DETERMINATION AND REASONS
1. The Appellant, the Secretary of State for the Home Department, appeals against the determination of an Adjudicator (Mr J K H Rintoul) who, in a determination re-promulgated on 17 March 2003, allowed the appeal of the Respondent, a citizen of Iran, whose application for asylum under the Refugee Convention and under the Convention for the Protection of Human Rights and Fundamental Freedom, had his application refused by the Secretary of State on 13 March 2002.
2. The grounds of appeal in this matter submitted by the Secretary of State read as follows:-

"1. This appeal was heard on 5 September 2002 and dismissed on 20 September 2002. It was amended on 18 January 2003 and re-promulgated on 17 March 2003.

2. Mr Ghassemi claims that he was arrested twice for selling satellite equipment (paragraph 5.1) and was fined. In paragraph 6.1 the Adjudicator does not accept that this is prosecution for an ordinary crime but finds Mr Ghassemi was committing a political act challenging the Iranian regime. It was submitted that Mr Ghassemi, who continued to sell illegal satellite equipment, did so solely to "make a living" (5.1) while he continued his studies and although he breached strict censorship laws, this was not imputed political opinion nor is this a Convention reason.

3. The Home Office was prevented (paragraph 6.3) from questioning Mr Ghassemi about his military service because it was not mentioned in the refusal letter. However, his signed witness statement (page 80) stated that he had not completed his military service and his oral evidence was that he was a conscientious objector. This was an unreasonable fettering of cross-examination.

4. The Home Office was prevented from questioning Mr Ghassemi about Christianity in Iran because it was not raised in the refusal letter. However, his signed witness statement (page 85) mentions he had attended church in Iran with his Christian friends. This was again unreasonable fettering of cross-examination.

5. The Adjudicator found Mr Ghassemi to be credible and the "doubts" raised in the refusal letter to be peripheral to the asylum claim (paragraph 8.16). However, the refusal letter raised significant credibility issues, which were not addressed by the Adjudicator. The Adjudicator did not accept the "inferences drawn in paragraph 9 and 10" but did not give any explanation.

6. Mr Ghassemi's mother, who converted to Christianity in the UK and received Indefinite Leave to Remain in March 2001, allegedly sent a Bible to him in Iran and explained that she wanted him to convert to Christianity (5.2). Mr Ghassemi and his mother both alleged that they had not discussed the reason she and her daughter had been granted Indefinite Leave to Remain. It was submitted that it was not credible that such an important matter was never discussed while at the same time urging her son to convert to Christianity. When asked why she had put both her son and the man who took the Bible to him at risk, Mr Ghassemi's mother mentioned there was a lot of corruption in Iran. The Adjudicator did not explain why he found this credible.

7. Mr Ghassemi allegedly kept the Bible in his house, despite knowing that if his house were searched again in connection with satellite equipment, it would be discovered. By his own admission a Bible found in his house would not necessarily result in punishment (6.6) but he then fled the country when he feared it had been discovered (5.2). His own evidence was thus contradictory and inconsistent.

8. In early November 2001, just weeks after the arrival of the Bible, the house was searched and Mr Ghassemi fled to his Aunt's house a few streets away where he was able to live for at least month without coming to the attention of the authorities (6.7). The Adjudicator did not explain why he found this credible.

9. The Home Office submits that in the light of the significant number of credibility issues, there is no clear explanation for Mr Ghassemi's evidence being accepted as credible."

3. Leave to appeal to the Tribunal was granted by the Tribunal (Mr G Warr, Vice-President on 25 April 2003.
4. When granting leave to appeal, the Tribunal stated as follows:-

"The grounds raise arguable issues about the conduct of proceedings and whether it was reasonable to restrict cross-examination to issues raised in the refusal letter. The Tribunal has given guidance on the risks faced by converts to Christianity and it is not clear to what extent the claimant would be at risk in the absence of Evangelical activities."

5. When the appeal opened before the Tribunal on 8 August 2003, the Secretary of State was represented by Miss Jan Webb, Home Office Presenting Officer, while Miss F Webber, of Counsel, instructed by the Brighton Housing Trust, appeared for the Respondent.
6. We had placed before us, the CIPU Report on Iran for April 2003, a bundle of authorities submitted by Miss Webber, as well as a bundle of documents of objective evidence and a statement by the appellant submitted by the Brighton Housing Trust.
7. We were then addressed by both Miss Webb, on the lines of the grounds of appeal and the documents submitted, as well as a copy of the Record of Proceedings before the Adjudicator, while, in reply, we were addressed by Miss Webber who relied on the documents which she had put in, on the Record of Proceedings, and a skeleton argument which she had put in.
8. This is an appeal by the Secretary of State against the determination of an Adjudicator, who allowed the appeal of an Iranian citizen, born on 7 October 1981, whose application for political asylum on imputed political opinion grounds, was refused by the Secretary of State, on 7 March 2002, and a decision made on 13 March 2002 for the issue to him of directions for his removal and the allowance by the Adjudicator of the Respondent's appeal on religious grounds also.
9. The claim of the Respondent, then the Appellant, was, initially, that he feared persecution by the Iranian authorities, on the basis of his evidence that he had been the owner of a satellite dish installation business in Iran, installing satellite dishes in people's houses and also video recording equipment in his house which he used to record videos of the son of the former Shah, which videos he sold to other people, but that, on two occasions, he had been arrested by the Iranian Security Forces, in June 1999, when he was detained and beaten with batons before being released after a week, and in December 2000, when he had been beaten, again, and detained for two weeks, and was fined on each occasion before being sent home. He claimed that, after his second detention, during which he had not been seriously injured, apart from a claim that his eyesight had been affected to some extent, he continued with his business but, finally, decided to leave Iran in December 2001, after the security forces had, again, raided his home looking to arrest him for continuing to sell satellite dishes illegally.
10. At the time the Respondent made his claim for asylum, that was the sole basis of his claim. The only reference, at that stage, to there having been any religious aspect to his claim, was, at the end of his interview, when the Respondent had mentioned that his mother had sent him a Bible from England as a present, although, at that stage, while he had attended an Armenian Christian Church, with a girlfriend, he had had no intention of becoming a Christian as it was a crime and was illegal. He was asked if that could be another reason for his having left Iran, his reply was "yes and no. The last time they raided my house and discovered the Bible it created more problems for me."
11. Following that reply, in answer to a further question, he agreed that he did not want to return to Iran as he may also be persecuted for being in possession of the Bible, and then went on to say that, since, being in the UK, he had attended a Christian Church and was studying towards becoming baptised.
12. However, the Secretary of State, in considering the Respondent's application for asylum, dealt with the imputed political asylum aspect only, in finding that the Respondent had not established a well-founded fear of persecution under the Refugee Convention or the European Convention for Human Rights, but did not deal, specifically, with the religious conversion aspect.
13. However, it must be noted that the Secretary of State, in refusing the Respondent's asylum claim, did so on the basis that, in view of the claim by the Respondent that, on the two occasions upon which he had been arrested, and the fact that the Respondent well knew the serious consequences of his carrying on the business of selling satellite dishes, he had continued to do so but that the Iranian authorities had fined him only, the Secretary of State was of the opinion that the Respondent had not been treated unfairly by the Iranian authorities and that the only interest shown in the Respondent by them was legitimate and an entirely understandable course of action taken by them to maintain law and order in Iran. The Secretary of State, also, was not satisfied as to the credibility of the Respondent's evidence as to how the Respondent had left Iran and had arrived in the UK.
14. On appeal against that decision of the Secretary of State, the Respondent appeared before an Adjudicator, was legally represented, gave evidence and was cross-examined by a Home Office representative. At the hearing before the Adjudicator, the question of the Respondent's conversion to Christianity was, for the first time, dealt with, and it would appear that he had, since coming to the UK, converted to Christianity and regularly attended a Christian Church, which was supported by a pastor of that Church. During the course of the hearing, the Respondent's mother also gave evidence on the Respondent's behalf, but, on her having been asked questions and although she had stated that she had had a close relationship with the Respondent, she did not know how he had earned his living in Iran, although she claimed to have been worried about how he was paying his rent and student fees. The Respondent's mother also said that she was not aware about his arrests and had not told him why she had been given refugee status in the UK, although she had told him of her conversion to Christianity. In reply to a question or questions as to why she had risked sending him a Bible, her reply was that she felt that there was a lot of corruption in Iran and wanted him to find the right path.
15. The Adjudicator, on that evidence, came to the following conclusion:-

"Based on my careful consideration of all the evidence before me, and taking into account the submissions of both representatives, I make the following findings of fact. I accept that the Appellant is a sincere convert to Christianity. In making this finding, I take note of his evidence, corroborated by both his mother and his pastor, that he attended regular classes to prepare him for baptism, the express purpose of which was, according to his pastor, to ensure that his desire to convert to Christianity was genuine. His baptism was not hurried and took place at his church's annual conference when other converts from across the country were also baptised in to the church. I do not find the timing of his baptism to be "convenient" or "self-serving" as suggested by Ms Pos. I find the circumstances surrounding his baptism to be entirely consistent with a sincere conversion made after much thought.

I find that the Appellant would be at risk of being discovered as a convert to Christianity on return to Iran. Even if he were able to pass through the airport and avoid arrest for his other activities, he would not be able to take part in Christian life in Iran. In so finding, I note that the CIPU report makes it clear that Evangelical churches, such as the one to which the Appellant belongs are closely monitored, and identity cards checked. The purpose behind this, to discover converts and to discourage conversion, is also clear. I find that, in the circumstances, the Appellant would be unable to practise his religion in any meaningful way without his conversion or his membership of the church coming to the attention of the authorities. I find that either would lead to the Appellant being persecuted. I note that there is clear evidence that converts to Christianity face death, or at the very least, as was found in Dorodian, other serious ill-treatment amounting to persecution.

I also accept that the Appellant was arrested on two separate occasions for being involved with the selling of satellite dishes and also the dissemination of proscribed videos. I do not accept that this is prosecution for an ordinary crime. The restrictions on satellite dish ownership and the dissemination of videos are without doubt a serious infringement of the right to freedom of expression. I find that the Iranian authorities are determined to control the access that their citizens have to information coming from outside Iran. I find that those who disobey these laws are committing a political act, and are perceived as being opposed to the regime and to be challenging it. In coming to this conclusion I have paid close attention to the decision of the IAT in Gomez (00/TH/02257). At paragraph 31 it is stated

'in the context of state agents of persecution, it is difficult to quarrel with the formulation given by Hathaway, Law of Refugee Status, 154:

'essentially any action which is perceived to be a challenge to governmental authority is therefore appropriately considered to be the expression of the political opinion.'

Having made these findings of facts I must now consider whether or not they constitute grounds for a claim that the Appellant has a well-founded fear of persecution or other ill-treatment if he were now returned to Iran. For the reasons set out above, and based on my findings of facts, I find that the Appellant would face persecution on return to Iran on account of his religion and also on account of his perceived political opinions. In coming to this conclusion I take full account of the objective background evidence, and the evidence of the Appellant's Pastor."

16. Particularly, the Respondent's appeal was based on the grounds of appeal submitted and, in the course of her submissions, while Miss Webb relied upon all the grounds of appeal, the main thrust of her case was that the Adjudicator had fettered the cross-examination of the Respondent by the Home Office representative, that, by doing so, the Adjudicator had not been able to appreciate all the evidence available, as he had not considered the question or give reasons for finding, whether or not the Respondent was an Evangelical Christian who would face persecution on that account if returned to Iran, and would appear to have accepted that the Respondent would face persecution on the basis of his apostasy alone, despite what has been stated in the CIPU Report on Iran for April 2003, and that, on the question of credibility, generally, the Adjudicator had not properly considered all the evidence and had misdirected himself.
17. During the course of Miss Webb's submissions, the whole question of the conduct of the Adjudicator in not allowing the Home Office representative to cross-examine the Respondent on certain aspects, was gone into in detail, and the submissions of Miss Webb on the statement of the Respondent and orally were aired at some length.
18. Miss Webb's submission was that the Home Office representative had not been allowed to ask the Respondent questions relating to his military service, which matter, although not dealt within the letter of refusal, had been mentioned by the Respondent in his signed witness statement. Miss Webber, while she would appear to have accepted that the Adjudicator had intervened on the subject of the Home Office representative's questioning of the Respondent on the subject, argued that the Home Office representative had not been prevented from asking the questions, but had agreed not to pursue that line of questioning, which, she submitted, if the Home Office representative considered that it was important to her case, she should not have agreed, but should have sought a ruling on the matter so that it could be used as a basis for appeal at a later stage. Miss Webber also submitted, that if the Home Office representative did not know what course to take when given the view of the Adjudicator on her line of questioning, she should have sought an Adjournment to take instructions, and that the actions of the Home Office representative in simply agreeing with the view of the Adjudicator, and not taking the matter further, showed a lack of training of Home Office representatives and ought not to be used as the basis for a ground of appeal.
19. During the course of argument on the subject, the Tribunal drew the attention of the representatives to the Surendran Guidelines, which, although they addressed only the situation where the Home Office is not represented, certain aspects could be relevant. Miss Webb argued that the Surendran Guidelines could be pertinent to the case, but Miss Webber disagreed.
20. Further, Miss Webber argued that, with regard to the clear intention of the Adjudicator on the questioning by the Home Office representative, nothing appeared on the Record of Proceedings particularly with regard to the claim of the Home Office representative that she had not been allowed to question the Respondent as to his relationship with Christianity while he was in Iran. The Record of Proceedings was before the Tribunal and, having studied it, and having heard submissions on the matter, it would appear that there is something in the Record of Proceedings with regard to the Adjudicator having intervened regarding the questioning of the Respondent on his military service, as it had not been addressed in the letter of refusal, but there is on the Record of Proceedings, a note to the effect that the Respondent's representative had stated that it would help her case if questions were put, but there the matter rested. However, with regard to the claim that the Adjudicator had intervened on the questioning of the Respondent regarding his association with Christianity while in Iran, nothing appears on the Record of Proceedings, but it is to be noted that, while questions had been asked about the finding of the Bible among his belongings, no questions would appear to have been asked about the relationship of the Respondent with Christianity while in Iran; this may have been an omission, or it may have been that the questions were not allowed to be asked, but that question could not be resolved from the Record of Proceedings.
21. Miss Webber also submitted that, while the Secretary of State's submissions were that the Adjudicator had misdirected himself and that the appeal should be allowed, the situation, as held in Oleed by the Court of Appeal, at paragraph 30, was that the Tribunal should not set aside a decision of an Adjudicator who had heard evidence unless it was plainly wrong or unsustainable, and that that had not been the situation here.
22. The question of the conversion to Christianity of the Respondent was also raised, and Miss Webber argued that the Adjudicator had come to the correct conclusion as to the sincerity of the conversion of the Respondent. She argued that from reading the CIPU Report, from the views expressed by the Adjudicator and from the authorities cited, as well as the submissions by her, the question of the difference between Evangelical Christians and Assyrian Christians did not play a significant part in the question of the safety of the return to Iran of Muslims who had converted to Christianity. She submitted that, she relied on Ghodratzadeh, in particular, where it had been held that the return of a Muslim who had converted to Christianity would put such a person in serious danger of persecution on account of his conversion to Christianity.
23. Miss Webber's submissions were that, both on the imputed political opinion aspect, particularly in the light of the seriousness of the use and sale of satellite dishes in Iran, the Respondent would be in serious danger of having a reasonable degree of likelihood of being persecuted, and that that coupled with the question of his conversion to Christianity, the Adjudicator had come to the correct conclusion and that the Secretary of State's appeal should be dismissed.
24. We then considered the submissions made before us and the authorities relied upon and directed ourselves that the burden of proof lay upon the Secretary of State and that the standard of proof is on the balance of probabilities.
25. The main points for consideration in this matter are whether or not the Adjudicator properly heard all the evidence in this case, in that it was alleged that he restricted the cross-examination of the Respondent, whether or not he fully appreciated all the points for decision, whether or not he directed himself properly on all aspects, particularly on the question of the credibility of the Respondent and the credibility of his mother, and whether or not the Adjudicator properly assessed the conversion to Christianity aspect.
26. Where the allegation of restriction of cross-examination is concerned, we find that, while it is clear, both from the Record of Proceedings and the determination, at paragraph 6.3, that the Adjudicator had not allowed the Home Office representative to cross-examine the Respondent on the question of his military service, as he was of the opinion that the issue had neither been raised at the interview nor in the letter of refusal. Miss Webber, in reply to the Home Office ground of appeal on that aspect, argued that, as the Home Office representative had agreed not to proceed with that line of questioning, this was not the time to raise the issue, but that the Home Office representative should have sought a ruling on the matter at the time.
27. We have considered this matter, and while we appreciate that what Miss Webber contends is a course that could have been applied and probably would have been applied, if the Home Office had been legally represented. However, the Home Office representative, as far as we can make out from the Record of Proceedings, may have made some sort of objection but all that appears on the Record of Proceedings is:-

"Ms Easty said it will help me."

Which would imply that, although the Home Office representative had objected to the Adjudicator stopping her from cross-examination, the then Appellant's representative had no objection to that line of questioning.

28. In looking at this matter, and taking account of the Surendran Guidelines, which we appreciate, do not directly apply to cases where the Home Office is represented, we are of the opinion that where, in the course of proceedings before an Adjudicator, the line of questioning by the Home Office representative is based on evidence which was before the Adjudicator and would appear, from the Respondent's own written statement and to which the Appellant's representative, not alone, had no objection, but had stated that it would help her, the Adjudicator should have borne in mind what it stated in paragraph 6 of the Surendran Guidelines, namely:-

"It is our view that it is not the function of a Special Adjudicator to adopt an inquisitorial role in cases of this nature. The system pertaining at present is essentially an adversarial system and the Special Adjudicator is an impartial judge and assessor of the evidence before him," and, further on in the same paragraph where it is stated:-

"It is not the function of the Special Adjudicator to expand upon that document, nor is it his function to raise matters which are not raised in it, unless these are matters which are apparent to him from a reading of the papers, in which case these matters should be drawn to the attention of the Appellant's representative who should then be invited to make submissions or call evidence in relation thereto."

29. As we see this matter, while the Adjudicator was entitled to object to a line of questioning which went outside the text of the letter of refusal, before he made a decision on whether or not to exclude it, he should have heard the views of both representatives and, in fairness if both representatives considered that the line of questioning was not objectionable, and would be of assistance to both of them, particularly as the matter of the Respondent's military service was a matter of evidence before the Tribunal, the Adjudicator, as an impartial judge and assessor of the evidence, ought to have taken heed of the spirit of the Surendran Guidelines, and have allowed the line of questioning initiated by the Home Office representative, to proceed.
30. To that extent, we find that the Adjudicator had unreasonably restricted the conduct of the Home Office case by fettering the cross-examination of the Respondent.
31. With regard to the claim by Miss Webb that the Adjudicator had restricted the cross-examination of the Respondent on the question of Christianity in Iran, we are unable to find anything in the Record of Proceedings to that effect, but, as part of the Record of Proceedings are illegible, we cannot be certain about it. However, giving the benefit of any doubt to the Respondent, we find that no such restriction had been placed on the cross-examination of the Respondent on that aspect.
32. With regard to the question of whether or not the Adjudicator had appreciated all the points for decision, we note that, while the Adjudicator considered the claim of the Respondent that, because he had been arrested on two occasions on account of his having been selling satellite dishes and been distributing videos, and had found that that was without doubt a serious infringement of the right of freedom of expression, that it was the commission of a political act, as the Iranian authorities are determined to control the access of their citizens to information coming from outside Iran, the Adjudicator does not appear to have taken account of the fact, contained in the Respondent's own evidence, that, although he had been arrested on two occasions, roughly six months apart and had been detained, he had been fined only and had continued to carry on selling the satellite dishes and distributing the videos; his reasons for so doing being that he wanted to earn money so that he could pay his rent and pay for his education fees. In addition to which, the Respondent had not informed his mother of his business activities or of is having been arrested and detained and fined, even though her evidence was that she was anxious about how the Respondent maintained himself and paid his student fees while in Iran.
33. As we see that evidence, while we appreciate that the Iranian authorities do appear to consider the selling of satellite dishes and the distribution of videos of a political nature to be serious, it is obvious, from the evidence of the Respondent, himself, that, in his case, at least, no serious action was taken against him, and that he had flouted the law in the matter, between 1999 and when he left Iran in 2001, with only two arrests during that period, and that he had continued his business, not as a protest against the state or in the expression of any political opinion, but merely in order to earn a living and pay his student fees.
34. If the Adjudicator had properly weighed up that aspect of the Respondent's evidence in assessing the Refugee Convention aspect of his claim and had noted the views expressed by the Secretary of State in his letter of refusal at paragraph 6 and 7, that the actions of the Iranian Government were legitimate and did not amount to unfair treatment, he may well have come to a different conclusion. However, the Adjudicator did not take such account of the evidence which we consider to be a serious omission.
35. With regard to the Adjudicator's approach to the question of the credibility of the Respondent and his mother, as we have found earlier, the cross-examination of the Respondent on one aspect, that of his military service, had not been allowed to proceed, which, to some extent, could have affected the assessment of the Respondent's credibility, as the Adjudicator did not address his mind, in any meaningful way, to the opinion expressed as to the Respondent's credibility in paragraphs 9 and 10 of the letter of refusal, beyond saying that they related to peripheral matters, he would appear to have lost sight of the Secretary of State's inference that the Respondent would appear to have been deliberately attempting to try to stop the Interviewing Officer from enquiring further into the Respondent's journey details, to which, at least, some consideration ought to have been given, as it might have had an effect on his credibility findings. And as for the Respondent's mother, who appealed, in her evidence, to say that she had a close relationship with her son, the Respondent, and who was worried about his living alone in Iran and was worried as to how he was paying his rent and student fees, yet did not know anything about his business activities between 1999 and 2001, the fact that he had been arrested and detained on two occasions, and yet, despite the fact that her son was a Muslim, she sent him a Bible; her excuse for so doing being that there was a lot of corruption in Iran and that she wanted him to find the right path, are points on which, although the Adjudicator found both the Respondent and his mother to be credible, nevertheless do not appear to have been taken into account by the Adjudicator in reaching that conclusion. The fact that there is nothing in the determination to indicate what view the Adjudicator took on those aspects and how he assessed them in reaching his conclusion, indicates at least a certain weakness in his reasoning on the matter, which we consider could well detract from his findings of credibility.
36. With regard to the aspect of the Respondent's having converted to Christianity, while we must accept that, on the face of the evidence, the Respondent was sincere in his conversion, we must also take into consideration his evidence at interview that, although he attended an Armenian Christian Church with his Armenian girlfriend in Iran, he had stated that he was not planning to convert to Christianity while in Iran because, as he said "… it is seen as being a traitor and it is a crime/illegal," and as the discovery of the Bible created more problems for him. Taking that evidence in conjunction with the fact that, although he had arrived in the UK on 17 January 2002, he had converted to Christianity and had been baptised within six to eight months of his arrival, he not having had any intention previously of so converting, was a matter to which the Adjudicator ought at least, to have referred in coming, to his conclusion in the matter, beyond merely finding that his baptism "was not hurried."
37. By so omitting to give that aspect consideration, it could well be argued that there was a weakness in the Adjudicator's reasoning in the matter. Further, where the fate that would meet the Respondent on his return to Iran, as a Muslim converted to Christianity, is concerned, while it is clear from the determination that the Adjudicator had before him the CIPU Report on Iran, where a distinction had been made between the attitude of the Iranian Government towards Evangelical churches as distinct from mainstream churches, and the present attitude of the Iranian Government to Muslim converts to Christianity, the question of whether or not the church to which the Respondent now adheres is Evangelical Pentecostal or mainstream was not considered by the Adjudicator in his determination, beyond his stating that the church was Evangelical, but there is nothing in the evidence of the Respondent or of Pastor Arian, that it is an Evangelical Church, or that the Respondent would be required to or would, evangelise on his return to Iran. The Adjudicator would appear to have come to the conclusion, in paragraph 8.20 of his determination, that the church which the Respondent adheres, is Evangelical, but without any basis for such a finding.
38. We have heard the submissions of Miss Webber in this matter and have noted the authorities to which she referred, and have noted her reliance on Ghodratzadeh, but we are of the opinion that, looking at paragraph 15 of that determination of Mr Justice Collins, the then President of the Tribunal, he did not wish that decision to be used as a precedent as it turned on its own particular facts, which facts are very different from the facts in the instant appeal. Nevertheless, even accepting that Ghodratzadeh could be used as a precedent, the whole question of the different fate which would meet a returned converted Muslim to Iran, who was a member of an Evangelical Church, and one who was not, has not been explored by the Adjudicator, and, further, taking account of the latest CIPU Report for April 2003, it would appear that the situation in Iran, where such persons are concerned, is not as serious as was found by the Adjudicator, and that it is very rare nowadays for a criminal case to be brought against a convert. However, although Miss Webber had pointed out that it would appear that there are some reports of converts having been executed, the general view that that is not universal, but the Adjudicator, apart from accepting that Muslim converts would face the death sentence, never alluded to the evidence which pointed the other way, which, as we see it, is not a fair way of assessing the situation based on the objective evidence.
39. In all these circumstances, while we have taken full account of what has been held in Oleed, at paragraph 29, we find that as explained above, the Adjudicator, in coming to his conclusions on the political asylum aspect and the conversion to Christianity aspect, has not taken full account of all the evidence before him, has restricted the cross-examination of the Respondent, which cross-examination was not objected to by either the Respondent's representative or the Home Office representative, and has not properly assessed the question of the credibility of the Respondent and his mother, and has not fully assessed the question of the effect the Respondent's conversion to Christianity would have on him if returned, in the light of there being no assessment of the difference between Evangelical Christians and non-Evangelical Christians. In these circumstances, we are of the opinion that the Adjudicator's determination is not sustainable, and we set it aside, subject to what we say below.
40. However, if the evidence, as a whole, were properly assessed by another Adjudicator and all aspects considered, we consider that a full and reasoned determination could be reached, which would be fair and just. Accordingly we allow the Secretary of State's appeal, but only to the extent of directing that this appeal be heard afresh before an Adjudicator other than Mr J K H Rintoul.
41. The appeal of the Secretary of State is, accordingly, allowed but only to the extent as stated above.

J A O'Brien Quinn QC

CHAIRMAN