FA (Fresh Evidence)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 29 October 2004 |
| Neutral Citation | [2004] UKIAT 291 |
| Court | Immigration Appeals Tribunal |
| Date | 29 October 2004 |
[2004] UKIAT 291
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Mr S L Batiste (Vice President)
Mr M J Griffiths
For the Appellant: Mr Huffer, instructed by Dicksons HMB Solicitors
For the Respondent: Mr J Gulvin, Home Office Presenting Officer
FA (Fresh Evidence) Iran
This is an appeal from a determination of a Special Adjudicator, Dr H H Storey, promulgated as long ago as 30 th September 1999. By that determination he dismissed the Appellant's appeal against the decision of the Secretary of State to refuse him asylum. He was a citizen of Iran who arrived in the United Kingdom in August 1998 and claimed asylum because of a fear of persecution, as a result of his having abandoned Islam to become a Jehovah's Witness. The Special Adjudicator did not find credible the crucial parts of his claim, which centred around his claim that the Iranian authorities had considered that he was an apostate from Islam.
The Special Adjudicator found that he had never been in trouble with the Iranian authorities for his religion, that he had never abandoned Islam and had never had a real interest in the Jehovah Witness faith. His reasoning was that the Appellant had married a Muslim woman in Cyprus where he claimed first to have become interested in becoming a Jehovah's Witness; he would not have married a Muslim if he had been as interested as he had claimed to be in being a Jehovah's Witness. She, as a Muslim, would not have married him because that was against her religion, as both of them would have known well. The Special Adjudicator commented:
“When questioned on this matter, the appellant said that in the eyes of his wife he was still a Muslim. In my view the truth was much more likely to be that he had never had any involvement with Jehovah's Witnesses and that she knew that when she married him. I note in this regard that the appellant has not taken the opportunity afforded to him by this hearing to call his wife as a witness and have her testimony tested under cross-examination.”
He found unsatisfactory the explanation which the Appellant gave for going from Cyprus to Iran with his wife in 1997, after his brother was said to have warned him that people there were saying that he had changed his religion. The Appellant also gave evidence that he had been detained on at least two occasions but the Special Adjudicator pointed out that there were significant discrepancies between the account he gave of what questions he was asked and of how he was treated, in his interview and in answers to his written statement. There were also other discrepancies in detail. The Special Adjudicator concluded:
“However, in this case, I simply do not believe that this appellant has ever in fact taken a real interest in the Jehovah Witness creed nor do I believe that he has ever been or would ever be perceived as an unbeliever by anyone in Iran. If returned to Iran, I consider that he would be viewed in the same way as any other ordinary Iranian citizen with an equivalent immigration history.”
The Appellant sought leave to appeal to the Tribunal on the ground that there was further written evidence and witness statements which the IAS, which had represented him before the Special Adjudicator had advised him not to produce which should have been produced, and he also wished to call two further witnesses because he had not been aware that he could call witnesses. He was by now represented by Challinors & Dickson. The Deputy President granted leave saying:
“This matter merits further consideration. The solicitors who have entered this application will be aware that it it is not the Tribunal's practice to consider evidence which could readily have been produced before the Special Adjudicator. The only reason given for its non-production amounts to an allegation relating to the Immigration Advisory Service's conduct of the Applicant's appeal and the Applicant will need to be ready to establish the truth of that application as a preliminary matter before the Tribunal.”
Before the appeal came on, the Deputy President, in response to a letter from those solicitors saying that they were proposing to call two witnesses, of whom it was not said that they were able to give any evidence about what had happened at the hearing between the IAS representative and the Appellant, said that the Appellant only had leave to give evidence himself and that would be confined to the preliminary issue as to whether the allegation against the IAS was correct. At the hearing, it was accepted by Mr Green of Challinors & Dickson that there was nothing in the IAS file which supported the Appellant's version of events. The Tribunal declined to allow the Appellant to be called, saying that Mr Green:
“… told us, however, that although he had contacted the Immigration Advisory Service to obtain the file, he had not mentioned the Appellant's allegation to them or sought to obtain their reaction to it. He told us also that there was nothing in the file to which he would be drawing our attention in support of the Appellant's allegation. In the circumstances we declined to allow him to call the Appellant, as it seemed to us that we should be being asked to make a judgment on the Immigration Advisory Services' professional conduct of the case on the basis of evidence which could only be partial. The new representative had had every opportunity to discover whether there was any merit in the Appellant's allegations but had chosen not to do so, and had full notice that the allegation was to be considered as a preliminary issue but had not prepared to establish it. Although it may be that in certain circumstances the Tribunal will act in order to remedy incompetent or misconduct by representatives, it will not do so unless properly satisfied that the Appellant has actually been prejudiced by his former representatives.”
After the hearing but before the determination was sent out, further material arrived upon which the Tribunal commented as follows:
“Following the hearing of this appeal we have received a letter from the Immigration Advisory Service, enclosing a copy of a letter written to them on 13 January 2000 by Mr Green. Mr Green had written to the Immigration Advisory Service as follows:
‘The Immigration Appeal Tribunal requires to know why you have not submitted the two documents, … at the hearing before … the Special Adjudicator.’
As must have been perfectly clear to the author of that letter, that statement was not the truth. We required nothing of the Immigration Advisory Service. The statement implies a further untruth, that we had concluded that the Immigration Advisory Service had it in their power to adduce the documents in question. As we said at the hearing and have said again in this determination, we were not prepared to allow a retrial of this appeal on a bare allegation against the Immigration Advisory Service, when Mr Green had not even sought their view on the allegation. To write to them after the hearing misrepresenting what had happened at the hearing does not help the Appellant at all. So far as we are concerned, the matter was closed at the end of the hearing before us: it is right to say, however, that nothing in the letter from the Immigration Advisory Services gives any support for the Appellant's allegations against them.”
It was accepted by Mr Green that there was no criticism which could be made of the Special Adjudicator's determination on the material before him. There was no breach of natural justice, the Appellant had been represented throughout by representatives of his own choice and had lost his case on his own evidence.
This decision was challenged by way of judicial review and in the Court of Appeal, the decision of the Tribunal was quashed, on 14 th June 2001. It said that the approach in R v IAT ex parte Aziz [1999] INLR 355 was correct. This case discussed the relevance of Ladd v Marshall [1954] 1 WLR 1489 to an asylum claim. Lord Denning had said at p1491:
“In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.”
Latham J said in Aziz:
“Both the applicant and the respondent agree that the decision in Ladd v Marshall is not determinative of the question which arises in asylum appeals.
In my judgment, they are right insofar as Ladd v Marshall requires the litigant to establish that the evidence could not have been obtained with due diligence. That would be an unjustifiably restrictive approach in this sensitive and difficult jurisdiction.
The second and third tests do, however, remain valid. The evidence cannot justify the grant of leave unless it is apparently credible and could affect the ultimate decision. The fact that it is tendered late is, however, a relevant consideration. There is a public policy interest in ensuring, so far as possible, that all relevant material is presented to the special adjudicator. Where an asylum seeker has been legally advised throughout, the Immigration Appeal Tribunal is entitled to look with scepticism at any new material submitted in support of a leave application, if it could have been obtained for the hearing before the special adjudicator. If it appears as though it is material which was withheld from the special adjudicator, although available, the Immigration...
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Upper Tribunal (Immigration and asylum chamber), 2004-10-29, [2004] UKIAT 291 (FA (Fresh evidence))
...font-size: 20pt } h5.ctl { font-family: "Book Antiqua", serif; so-language: ar-SA; font-weight: normal } FA (Fresh Evidence) Iran [2004] UKIAT 00291 IMMIGRATION APPEAL TRIBUNAL Date of Hearing: 5th May 2004 Date Determination notified: ...29th October 2004... Before: The Honourable Mr Justi......