Hassan Gheisari v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY,LORD JUSTICE GAGE,LORD JUSTICE THOMAS,LORD JUSTICE PILL |
| Judgment Date | 16 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1854,[2004] EWCA Civ 1320 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C4/04/1332 |
| Date | 16 December 2004 |
[2004] EWCA Civ 1320
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Sedley
Lord Justice Gage
C4/04/1332
MR MICHAEL O'DONNELL (instructed by Knight & Co, 4 Leigh Road, Eastleight Hants SO50 9FH) appeared on behalf of the Applicant
I do not say this is a case which is necessarily going to succeed, but it is certainly not a hopeless case.
Every claimant is entitled to have his case properly heard. Having revisited the papers and reviewed my written reasons for having initially refused permission to appeal, I now think it arguable that the applicant's case was not properly heard at either level.
There is first of all an obvious lacuna in the adjudicator's decision. He rejects the applicant's account of his circumstances without even mentioning their most important feature, namely that he recounts that he was arrested because of his Zoroastrian beliefs, and very possibly too because of his father's distressing history. His father was a university teacher who made a speech hostile to the authorities and disappeared into the hands of the police, where it is almost certain that he was killed. The applicant gives an account of having been detained himself and tortured; and although he was, on his account, returned home the same day, this may have been associated with the threat that had been made to kill his family. It was at that point, however, that he made his escape.
I refused permission to appeal initially because it seemed to me that the IAT had closed this gap in the latter part of its decision, having made its own unassailable evaluation of the in-country data. But it seems to me on reflection that this may well not have been enough. In-country data are the indispensable background in these cases, but the IAA, at whichever level, has also to consider the individual foreground. This is especially so, I think, in the case of a state like Iran, where arbitrary acts of the state authorities are known to be commonplace.
Here the foreground described by the applicant is capable, it seems to me, of indicating a well-founded fear of persecutory treatment that may not be experienced by others Zoroastrians. This, however, has never been adjudicated on. The adjudicator ignored it; and although leave was granted for that very reason to appeal to the IAT, the IAT has assumed that it was properly dealt with and legitimately rejected by the adjudicator. I am not at all certain that that was right. The assumption, in other words, on which the IAT proceeded seems to me questionable; and if it was a wrong assumption then it creates and leaves a critical gap in the IAT's own reasoning.
All this seems to me to be worthy of consideration by the full court, and I would, on reflection, grant permission.
I agree.
ORDER: Leave granted.
[2004] EWCA Civ 1854
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Pill
Lord Justice Sedley
Lord Justice Thomas
C4/04/1332
MR M. O'DONNELL (instructed by Messrs Knight & Co., Eastleigh, Hants) appeared on behalf of the Appellant.
MR. S. GRODZINSKI (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
The appellant claimed asylum on 28th May 2002 shortly after clandestinely entering the United Kingdom from Iran. His ground was that, having been born into a Muslim family and having converted to Zoroastrianism, the country's pre-Islamic religion, he had been arrested by the secret police and brutally treated before escaping. He feared a repetition or worse if he were to be returned.
His account of what happened a month after his alleged conversion in April 2002 was this:
"9. At about 10 a.m. on the 10th may 2002 I received a telephone call from my friend, Kayvan, warning me that the authorities had found out about my conversion and that Arash Ahorahi had been arrested and detained on account of his attempting to proselytise Muslims. Unfortunately, I had no chance of escaping because the authorities raided my home within minutes of the phone call. I was handcuffed and blindfolded and taken by the Secret Services to a detention centre nearby.
10. Whilst detained, I was interrogated by the authorities who wanted to know about the people who had converted me. I totally denied having changed my religion. Initially I was verbally abused and threatened with my life. I was then beaten with an electrified baton, causing electric shocks to my body. I was also placed inside a large rubber tyre and rolled down a staircase. When I did not confess, two of the officers bundled me blindfolded into a car and said that they were taking me back to my house so that they could shoot my family. The officers seemed to be very agitated and on coming to a halt I heard the sound of gun fire. Fortunately, this sound emanated from my friends' guns. They had been hanging around near my home, trying to find out what was happening to me. When they noticed the car returning me, they managed to set me free. All of these events occurred on the 10th May."
There is one other matter of possible importance, although it was given little if any prominence in the appellant's case. According to his witness statement:
"3. My father has been missing for about 11 years and my family has been led to believe that he was executed by the Iranian authorities. He was a university lecturer possessing anti-government beliefs and he disappeared after making an anti-government speech during a huge demonstration in 1992 that had been organised by and concerned the plight of disabled people. Many of these people were war victims who were complaining about the welfare provided them by the Government. Also, other sections of society used this demonstration as an opportunity for expressing their dissatisfaction with the Iranian Government. The demonstration took place over 3 days and it was on the second day that my father made a speech at the university where he worked. He did not return home after the demonstration.
4. Immediately after his disappearance my family went to the police and looked in the hospitals to try to find my father. He was reported as a missing person along with many other people who went missing on that occasion. We were not sure what had happened to him, but we thought that he may have been taken away by the authorities.
5. About a year after his disappearance, my mother was called to a detention centre in Shiraz, 'Adel Abad', where she was told that my father had been executed for committing crimes …"
The Secretary of State refused the appellant's application principally because he found the appellant's account of his escape incredible. He wrote at paragraph 6 of the refusal letter:
"You claim you were arrested on 10/5/02 and held for a few hours before you managed to escape. You claim the authorities returned you to your home blindfolded and handcuffed. When asked why the authorities would return within a few hours of your arrest, you replied to intimidate your relatives. The Secretary of State takes the view that the authorities would not concern themselves with your relatives. Furthermore, the Secretary of State does not believe your friends and neighbours, armed with weapons and 'special scissors' attacked officials, placing themselves in potential danger of arrest in order to help you escape from custody. He does not believe that your friends and neighbours were gathered outside your home, armed with weapons and 'special scissors' on the off chance you would return with the authorities to intimidate your relatives."
At several points in that passage parenthetical reference is made to questions and answers recorded at interview.
The adjudicator shared with the Secretary of State serious doubts about the profundity of the appellant's conversion, but neither in that brief part of his decision headed "the evidence", nor in the paragraph headed "the facts", did he make any reference to the arrest and escape upon which the appellant's asylum claim hinged. In the former paragraph he wrote:
"I was, like the respondent, unable to accept his account of what happened when he claimed to have been arrested and do not find that part of his story credible."
Having then referred to what happened to the appellant's father the adjudicator wrote:
"He became a Zoroastrian and then decided to leave Iran",
hardly, one might say, a complete account. Finally, having considered the in-country evidence that Zoroastrianism was constitutionally protected in Iran, he wrote:
"I have been unable to accept the appellant's evidence as to what he claims was the persecution he was subjected to in Iran prior to his departure. His evidence lacks the ring of truth."
The adjudicator dismissed the appeal, both on asylum and on human rights grounds.
The single member who gave leave to appeal did so on the basis of...
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