United Kingdom Asylum and Immigration Tribunal

KM (Opposition activities-UFIN) Iran [2004] UKIAT 00329(2)

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 5 October 2004

Date Determination notified: 31 December 2004

Before
Mr H J E Latter – Vice President Ms C Jarvis – Vice President Mr K Kimnell
Between

 

KM	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr M Sowerby, of Counsel instructed by YVA Solicitors For the Respondent: Mr L Parker, a Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant, a citizen of Iran, appeals against the determination of an Adjudicator, Ms Ruth Sullivan, who dismissed his appeal on both asylum and human rights grounds against the decision made on 18 August 2003 to refuse him leave to enter following the refusal of his claim for asylum.

Background

2. The appellant travelled from Iran to Turkey on 20 May 2003 and then by air to the United Kingdom on 20 June 2003 and claimed asylum on arrival. His journey was arranged by an agent. On arrival in the United Kingdom he did not have a passport.
3. The appellant based his claim for asylum on the fact that members of his family had faced persecution in the past in Iran because of their political opinions. His father had been killed because he supported the Shah's regime and his brother was expelled from university for speaking out against the government. The appellant said that he was a professional wrestler. As a result of his family's political history, he was prevented from competing abroard. Because of his background he became a member of the United Front of Iranian Nationalists (UFIN). He was arrested on 13 February 2001 on suspicion of being involved with anti-government bodies. He claimed that he had been tortured for six days and then released because there was no evidence against him.
4. The appellant attended a UFIN meeting on 9 April 2003 which was raided by the authorities but he managed to escape. He claimed that incriminating evidence was found in his car by the authorities linking him to UFIN. The Secretary of State did not find this claim to be credible for the reasons which are set out in the reasons for refusal letter dated 15 August 2003. The appeal against this decision was heard by the Adjudicator on 5 November 2003. The appellant gave oral evidence and the Adjudicator had documentary evidence as itemised in paragraph 8 of his determination. This included an extract from the UFIN website and a magazine article which had not at the date of the hearing been published.
5. The Adjudicator found that the appellant had given a consistent account of his arrest in November 2000 and of being detained and ill-treated in custody. He had scarring which was consistent with trauma from sharp objects such as beating with an iron bar. She accepted that the appellant had been in custody and had suffered blows to the head but she was not satisfied that he had been a UFIN activist or that he was being sought by the authorities. She did not accept that his detention in 2000 was connected with his political activities. She went on to assess the impact of the UFIN website article. She commented that she would not recognise him from the photographs and found that this article even when taken in conjunction with the November 2000 arrest was not sufficient to put the appellant at real risk of persecution on return. She was not satisfied that the authorities now had any interest in him. She did not consider the impact of the anticipated magazine article as it had not been published at the time of the hearing. For these reasons the appeal was dismissed on both asylum and human rights grounds.

The grounds of appeal

6. In substance the grounds of appeal raise one issue. It is argued that although the Adjudicator has clearly looked at the materials from the UFIN website, she has not given any consideration or reached any conclusion in relation to the submission that the claimant would be at risk of persecution due to the contents of the website. This argument is developed in ground 3 which recites the submissions made on behalf of the appellant. It is argued that the images show two photographs of the appellant in his boxing clothes and that he is clearly identifiable as his name appears above them. The appellant is identified as someone who fled the Iranian regime as his life was in danger. The image must be considered within the context of the rest of the website which is intensely critical of the Iranian regime. The other texts and images include a record of two people shot whilst escaping from the authorities. The Iranian authorities are very sensitive to any kind of criticism of the regime. This sensitivity extends to those who criticise Iran from abroad. The authorities in Iran censor the media and put on trial and imprison writers who criticise the regime. Although the internet is not officially censored the Iranian state is attempting to control internet use. It is likely that the UFIN website would be monitored by the regime and they would be aware of its contents. In summary it is argued that if the appellant is returned to Iran there would be a real risk that he would be identified from his appearance on the website as someone allied with opponents eHe Heof the regime. In conjunction with the fact he had been arrested and tortured in detention in 2000 his would lead to a real risk of persecution.
7. When granting permission to appeal, the Vice President His Honour Judge Ainley, commented that the Adjudicator's findings on credibility were well reasoned and not susceptible to serious challenge but it did appear to be arguable that materials available to the authorities in Tehran may place the appellant at risk on return. Subsequently, the Tribunal gave permission for oral evidence to be adduced from ( ) the President of UFIN, and expert evidence from ( ).

The evidence before the Tribunal.

8. In addition to hearing oral evidence the Tribunal received documentary evidence on behalf of the appellant in three bundles, the appellant's personal bundle (AP), his objective bundle (AO) and a supplementary bundle (AS). The respondent put in evidence the CIPU report for Iran April 2004 which also appears in bundle AO from page 27. Mr Sowerby produced the following authorities Bahramina (01/TH/00392) and Joharian [2002] UKIAT 005040 and the Court of Appeals judgments in Danian [1999] (INLR533) Mr Parker produced Nasarinia [2002] UKIAT 05438, Pour (01/TH/0176), Sultani [2002] UKIAT 00654 and Moradi (01/TH/1313). ( ) produced a copy of the document referred to in her expert report, Reporters without Borders 2004 Internet Surveillance Report.

The evidence of ( )

9. ( ) confirmed the contents of his witness statement at AS1-20. This can be briefly summarised as follows. He arrived in the United Kingdom in August 1990 and was granted refugee status in 1992. He is the founder and President of UFIN. This organisation was founded in Cyprus in December 1997 at a meeting attended by approximately sixty people. There are in excess of one hundred thousand members of UFIN in Iran, of which approximately five thousand are active. Suitable candidates for membership are normally approached directly by existing members but an approach should only be made after the existing member is entirely satisfied that the prospective member has already demonstrated that he or she possesses anti-government views. If a prospective member wishes to become a member her details are passed to the UFIN headquarters in Tehran and the application will be scrutinised. New members are allocated an identity code. Their names are never used in Iran. The codes are stored manually in files in an undisclosed location.
10. There are UFIN members in the United Kingdom and in a number of other countries including Spain, Germany, Cyprus, Turkey and the United States. When UFIN was established it would communicate with its members in Iran by telephone, fax and email, but it became increasingly apparent that the Iranian authorities were monitoring their activities. Messages on cassette tape are smuggled into Iran and distributed to their intended recipients. UFIN also makes extensive use of the internet in order to exchange views and articles. This site is based in London. It receives approximately 200 to 300 hits a day. There are also websites in Germany, Cyprus, Scotland and France. The Iranian authorities prevent access to the UFIN website by the general public. The activities of UFIN members are monitored and there is also evidence that the authorities monitor their website. UFIN publishes a magazine called "Bamdad" which means Iranian Dawn. About 50,000 copies of the magazine are published each year. The articles are highly critical of the Iranian government. The magazine is available in most European countries and is smuggled into Iran from Turkey. The Iranian authorities are careful to ensure that opposition groups in Iran are not given any publicity. The media do not refer to individual opposition groups by name, but collectively as "Monoaeighhan" which means "those people who fight against Islam".
11. In respect of the appellant, it is said that he is a high level UFIN activist introduced to the organisation in March 2000. He subsequently became a member. He had been detained by the Iranian authorities on suspicion of anti-government activities and when in detention was badly treated. This information was passed on by a representative of UFIN headquarters in Iran who was visiting the United Kingdom. After the appellant arrived in the United Kingdom, the appellant's identity was established and details were put on the UFIN website to bring his plight to the attention of the world.
12. In his oral evidence ( ) confirmed that the article at AS21-23 was from the Bamdad magazine. Later in evidence it was confirmed that this was published in January 2004. The magazine is published in London, Cyprus and Turkey and sent into Iran. He referred to a cartoon at AS26 which is critical of both the Iranian regime and the European Union's dialogue with Iran. He also referred to other publications such as AS27 which were smuggled into Iran. He confirmed that UFIN worked closely with the monarchists and indeed with any organisation prepared to struggle against the Islamic republic.
13. In cross-examination he confirmed his view that the Iranian authorities persecuted UFIN members. He referred to the copy of the UFIN website at AP82. There were 5000 active members in Iran. He was asked why UFIN was not referred to in any of the background evidence. He explained that this is because it was a young organisation. The Iranian interior ministry had issued a directive that there should be no mention of political organisations when there were arrests. Amnesty International would not report such arrests as UFIN were against Amnesty as they did nothing. He was asked why people were named on the website. He said that those in Iran were given pseudonyms but the appellant had been named because he was living outside Iran but he also had been given a pseudonym. He explained that the website referred to Karen Nazari when he was known as Saed Nazari.

The evidence of ( )

14. ( ) gave evidence. She confirmed the contents of her report dated 2 August 2004. This was in response to a request for comments on the monitoring by the Iranian authorities of Iranian dissidents abroad and of opposition websites. She said that for many years it has been known that the Iranian authorities take a close interest in the Iranian opposition in exile, including the activities of Iranians resident in European countries. Up to the mid 1990's there had been a serious of assassinations of opposition figures and evidence of the involvement of the Iranian Ministry of Information had emerged during the course of a trial in Germany of those responsible for the 1992 murder of Kurdish opposition leaders in the Mykonos Restaurant in Berlin. Her report cites from annual reports of both the German and Dutch services referring to the activities of the Iranian intelligence service. There continue to be intermittent press reports of trials, convictions and expulsions of Iranian agents spying on exiles. The Mojahedin-e-Khalq is the most frequently mentioned target but other groups include Monicus, KDPI members and Balochi activists and using a phrase from a German intelligence report, "the entire anti-regime spectrum".
15. The report goes on to comment on the intensive use of the internet by Iranian opposition organisations which has been a phenomenon of the last five or six years. She commented that it was inconceivable that the Iranian authorities would not engage in the regular surveillance of exile websites. This will obviously not be a matter advertised by the authorities and it would be impossible to assemble documentation on it. Her report refers to the Reporters Without Borders 2004 report, which records that censorship in Iran, officially to protect the public from immorality, has quickly spread to political content and that it is easier to access pornographic sites than reformist ones. Nearly ten thousand sites are thought to be blocked from inside the country.
16. In cross-examination ( ) confirmed that parties such as the MEK, MKO, and NCRI were organisations which had been involved in fighting in Iran. The KDPI also operated illegally in Iran. She accepted that the sources she referred to were not from any UK reports but the British security services did not provide an annual report in the way the Dutch service did. She accepted that there was no direct evidence that the Iranian authorities monitored websites, but it was inconceivable that they would not do so. It was known that the authorities kept a close check on political websites. It would be a limited number of websites probably about thirty opposition sites that the Iranian authorities would be interested in. In response to a question from the Tribunal about how the Iranian authorities might deal with information on websites and articles it was her view that the evidence would be put on a file until the person involved came to the attention of the authorities. The person would not be pursued but if someone came to the attention of the authorities, the information might then come out and they would investigate and might punish the person involved.

The submissions

17. Mr Parker submitted that there was inadequate evidence to show that the appellant would be at risk on return. There was no reference to UFIN in any of the objective evidence save for a reference in the CIPU report as to its existence. The evidence about its activities presented a very blurred picture of working with monarchists, communists, and any organisation opposed to the current regime. The reality of the position was that UFIN did not have any profile in Iran. The evidence about the names or pseudonyms used on the website was unsatisfactory. In Joharanian there was a concession as to credibility. The facts were very different in Bahramian. The Tribunal should follow Moradi in holding that authorities in Iran would have no particular interest in UFIN publications. It was clear from the expert report that the authorities were primarily interested in active bodies such as MEK and NCRI. The nature of these organisations was clear from the CIPU report. There was no proper basis for finding that the Adjudicator's determination erred in law.
18. Mr Sowerby submitted that the Adjudicator had erred in law. She had failed to consider any of the objective evidence. She had made no finding as to why the appellant had been detained and had failed to make a finding about whether he was a member of UFIN in this country. She had erred in her assessment of the consequences of the appellant being mentioned on the website and in the magazine article. He submitted that as a member of UFIN the appellant would be at risk. UFIN had clearly adopted an anti-government stance and it was clear from the background evidence that the Iranian government did not tolerate political opposition: CIPU report para 6.196 and 6.228. There was evidence that the authorities monitored organisations such as UFIN. A person appearing on an anti-government website would be a risk on return. The risk to the appellant arose from the fact that he had been detained and ill-treated in custody. He was a UFIN activist in Iran. He was a member of UFIN in the United Kingdom. He appeared on the website. He had been interviewed in the Bamdad magazine. In all these circumstances he would be at real risk on return.

The jurisdiction of the Tribunal

19. This appeal is brought under the provisions of section 101 (1) of the 2002 Act. In CA v Secretary of State (2004) EWCA Civ 1165 the Court of Appeal held that under section 101 the Tribunal's function was plainly confined to appeals on law only. An appeal could not be allowed unless the Tribunal held that the Adjudicator had perpetrated a mistake of law which must be a material error of law. Once a material error of law was shown the Tribunal must then decide what if any relief to grant in the light of the facts arising at the time it is considering the case. A submission that the Tribunal may look at the up-to-date merits of the case provided only that permission to appeal had been granted on a point of law was rejected. The jurisdiction under section 101 prevented the Tribunal from deciding the merits itself unless at least it first concluded that the Adjudicator's decision could not stand because it was marred by error of law.
20. In the present appeal, the Tribunal has given permission for further oral evidence to be called. The Tribunal is entitled to take this evidence into account in considering whether there has been an error of law, but in so far as the further evidence relates to the merits of the claim it only becomes relevant if the Tribunal find that there is an error of law and then goes on to consider for itself the merits of the appeal.

Consideration of whether the Adjudicator erred in law

21. The Tribunal will now turn to consider whether there is an error of law in the Adjudicator's determination. The grounds of appeal are very specific. The error asserted in ground 2 is that the Adjudicator has not given any consideration or reached any conclusion in relation to the submission that the appellant is at risk of persecution due to the contents of the UFIN website. Ground 3 identifies the submissions made in support of the contention that the website gives rise to a risk. Ground 2 is clearly inaccurate as the Adjudicator did consider the website and did reach a finding. She commented in paragraph 26 of her determination that she would not have recognised the appellant from the photographs on the website. In paragraph 35 she assessed the impact of the website. She noted that the appellant was not described in the caption above the photographs as a UFIN member. This is correct. The text above the photographs of the appellant and another person, is: "Mr H. M., member of UFIN and Mr Karen Nesiri member of Wrestle Iran, he escaped from Iran. Their life was in danger." It was the Adjudicator's view that the UFIN website feature identifying the appellant by name and sport even when taken in conjunction with the November 2000 arrest was not sufficient to put the appellant at real risk of persecution on return.
22. Although, ground 3 is not phrased in this way, it could be read as arguing that the Adjudicator failed to take the factors identified in that ground into account when assessing risk. In summary the factors are the presence of the photographs on the website, the identification of the appellant, the fact that the website is clearly critical of the authorities and contains allegations of torture in relation to other members of UFIN. The regime is sensitive to any kind of criticism and is known to censor the media and put on trial those who criticise the regime. By implication it is argued that the appellant would be identified from his images on the website as someone allied with opponents of the regime and taken with the fact that he had been previously arrested and tortured he would be at risk on return.
23. It is clear from reading the determination that none of these factors have been left out of account by the Adjudicator. She was fully aware of the contents of the website, the Iranian government's attitude towards political opponents and the fact that the appellant had been previously detained. The Tribunal is not satisfied that it is arguable that the Adjudicator erred in law by leaving relevant matters out of account nor that it is arguable that the Adjudicator's findings were perverse in the sense of being irrational or unreasonable.
24. Although the Adjudicator accepted that the appellant had been detained, she found that this was not in relation to his political activities. She made a finding of fact that the appellant had not told the truth about his involvement with UFIN. She was not satisfied that he had been politically active in Iran nor that his car had been searched and UFIN material found. The Adjudicator has given adequate reasons for her finding in paragraph 28 of her determination and in any event they have not been challenged in the grounds. Taking all these factors into account, the Adjudicator's findings that the authorities would not have any interest in the appellant on return are properly sustainable on the evidence and do not disclose any error of law.
25. In his submissions Mr Sowerby submitted that the Adjudicator had failed to consider any of the objective evidence. There is no substance in this ground. The Adjudicator has set out the evidence before her in paragraph 8. She has dealt with the background material in paragraphs 23 and 24 of her determination. She accepted that this material showed that the Iranian regime was intolerant of opposition and dissent noting that the current regime was more liberal than some of its predecessors but reforms had been inhibited by continuing tensions between liberal and conservative factions and between secular and religious views. She noted the concession made by the respondent's representative at the hearing that, if the appellant's evidence was true, then he would be at risk in Iran.
26. Mr Sowerby also sought to argue that the Adjudicator had not made a finding as to why the appellant was detained. There was no need for her to do so. The fact is that she was not satisfied to the lower standard of proof that the detention was for the reasons he gave. He also argued that the Adjudicator failed to make a finding about whether the appellant was now a UFIN member in the United Kingdom. That finding was not necessary but in any event would not be material to the Adjudicator's determination as the crux of the case before the Adjudicator was whether a risk arose from the appellant's photograph being on the website.
27. Although the point was not raised in submissions, the Tribunal have considered whether the Adjudicator erred by excluding in her assessment of risk the impact of the anticipated magazine article which had not been published at the time of the hearing. Looking at the record of proceedings, the evidence before her from the appellant was that he had been interviewed for a magazine. He had not seen the article and indeed there was no article before the Adjudicator. We are satisfied that the Adjudicator was entitled to leave the publication of an article out of account when its contents were unknown and a matter of speculation.
28. The Tribunal has considered the oral evidence to see whether there is anything in that evidence which indicates the Adjudicator erred in law. ( ) has given evidence about the foundation and background of UFIN and how its members are recruited. He said in his statement that the appellant is a high level UFIN activist. This evidence goes to the merits of the claim and if it was to be relied on should have been in evidence before the Adjudicator. The fact that there is further evidence about the merits does not by itself amount to an error of law. There was an issue before the Adjudicator as to whether the appellant was active on behalf of UFIN in Iran. She rejected that evidence for the reasons which she gave. ( )'s evidence confirmed, as the Adjudicator accepted in any event, that the Iranian authorities take an active interest in the Iranian opposition in exile. It also confirmed the likelihood that the Iranian Security Services would take an interest in opposition websites. The Tribunal accept both propositions. The Adjudicator expressly accepted the first and by implication accepted the second. The further evidence does not satisfy the Tribunal that the Adjudicator erred in law in her assessment of the evidence or of the risk on return. For this reason this appeal cannot succeed.

Our conclusions on the evidence about UFIN

29. However, the Tribunal will set out its views on the oral evidence we have heard about UFIN. We accept ( )'s evidence about the formation and purposes of UFIN. The strength of his feeling about the current Iranian regime is clear from his message at AS17-19 following the constitution of UFIN. However, the Tribunal do not accept that UFIN is active in Iran. The only mention of UFIN in the background evidence is in the April 2004 CIPU report in annex B (b) where it is described "as a European based political organisation established December 1997 which is believed to be a result of the National Front Party and the National Unity Party joining forces after the revolution. It purports to have an active presence in Iran but to date it has proved extremely difficult to obtain any corroborative evidence. It has a UK office and supports a website which claims membership both within in Iran and in some other countries. It produces a magazine called Bamdad".
30. The explanation for there being no such corroborative evidence is said to be firstly the fact that UFIN is a relatively young organisation only established in 1997 and that the Iranian authorities prevent the naming of opposition political organisations. ( ) also made it clear that his organisation was out of sympathy with Amnesty. However these factors do not satisfactorily explain the lack of any objective evidence about the activities of UFIN in Iran. In Nasarinia the Tribunal commented on the absence of evidence to demonstrate UFIN's existence within Iran on the scale argued by the claimant in that case. The argument that the absence of evidence should not be treated as conclusive as observers have found it difficult to pierce the veil of secrecy cast by the regime in Iran over its internal affairs, overlooks the fact that there are a number of experts on Iran who have been able to assist the Tribunal with very detailed evidence about such matters.
31. The Tribunal notes the conflict between the Tribunal determinations in Bahrmian where it was accepted that the claimant had been active on behalf of UFIN in Iran, with the comments of the Tribunal in Boradi that it was reasonable to conclude that the authorities in Iran would have no particular interest in UFIN publications and that UFIN were not listed in the background evidence as an opposition party of interest to the Iranian authorities. In that case the claimant had neither been a prominent activist nor of high profile. This would distinguish the position from the facts in Bahrmian where in paragraph 8 the Tribunal noted that the claimant had been arrested, detained and tortured and that his subsequent complaint to the Ministry of Justice and participation in a strike would cause the authorities to suspect that he was engaged in anti-government activities. It was found that his house had been searched on number of occasions and that he had been involved in activities for UFIN including the distribution of leaflets, the removal of office furniture and publicity material.
32. The evidence in that case was that UFIN was a non-violent underground political movement. Its members received orders through a network of members identified only by codenames. ( ) gave similar oral evidence but the Tribunal find this hard to reconcile with the evidence from the website at AP 82-95, where names were given of UFIN members holding positions in Iran. The explanation is that these are pseudonyms but ( ) also referred to the name of the appellant as a pseudonym even though the name given is virtually identical to the appellant's own name and in any event he is identifiable from a photograph and as a wrestler.
33. Nonetheless it is clear that UFIN does oppose the current Iranian government and does publish and endeavour to circulate literature extremely critical of that government. Some of the literature may be smuggled into Iran and there is a possibility that it may come to the attention of the Security Services there. The Tribunal accept ( )'s evidence. It confirms as is clear from the objective evidence that the Iranian authorities take a close interest in opposition activities. In her report she cites from the German and Dutch authorities. This confirms that the authorities' main interest is in active political groups such as the MEK and NCRI. ( ) says that it is inconceivable that the Iranian security services would not engage in regular surveillance of websites of groups in exile. We agree. This seems to us to be an uncontroversial proposition.
34. However, the fact that surveillance takes place and that the regime targets opposition activists does not provide an adequate evidential basis for an assertion that anyone who is mentioned in a website or literature produced by an opposition party would be at real risk of persecution in Iran. The Tribunal is not satisfied that membership of UFIN would put a claimant at risk in Iran. However, if on the facts of a particular case it is shown that there is a reasonable degree of likelihood that an applicant has engaged in opposition activities in Iran whether on behalf of UFIN or any other party, we accept that those activities are capable of giving rise to a well-founded fear of persecution.
35. In the present appeal a critical finding of fact made by the Adjudicator is that the appellant had not been involved in activities on behalf of UFIN when in Iran and that his detention in 2000 had nothing to do with any political activities or opinions. The Tribunal accept that evidence on a website or in a newspaper article might in the particular circumstances of an appeal lead to a finding that a claimant was of interest to the authorities in Iran and lead them to the view that he was associated with opposition activities. This brings us back to the issue at the centre of the present appeal. Would the authorities take such a view of the appellant in the light of the fact that he appears on the UFIN website and the account of his departure from Iran appears in the Bamdad magazine? The Tribunal cannot accept that the fact alone of being on the website or being the subject of an article in a magazine published by an opposition group would lead to a real risk on return. This is a question of fact for the Secretary of State and for the Adjudicator to assess and determine on the basis of the available evidence. As the Tribunal have already indicated we are satisfied that the Adjudicator's findings were properly sustainable on the evidence and do not disclose any error of law.

Decision

36. For these reasons this appeal is dismissed.

H J E Latter

Vice President

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