Hn (Iran) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe |
| Judgment Date | 18 April 2013 |
| Neutral Citation | [2013] EWCA Civ 627 |
| Docket Number | Case No: C2/2012/3039 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 April 2013 |
[2013] EWCA Civ 627
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
[Appeal No: C0/1140/2011]
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice McCombe
Case No: C2/2012/3039
Mr Shuyeb Muquit (instructed by Fadiga & Co) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
This is a renewed application for permission to appeal to this court against a decision of the Upper Tribunal (Immigration Asylum Chamber) of 15 October 2012, whereby that Tribunal dismissed the applicant's claim to judicial review of the decision of the Secretary of State for the Home Department of 4 November 2011, refusing to treat his additional submissions as giving rise to a fresh claim under paragraph 353 of the Immigration Rules.
The claimant is an Iranian citizen, who arrived in the United Kingdom on 10 July 2010 and claimed asylum at the airport on arrival. His application for asylum was refused by the Secretary of State and his appeal to the First-tier Tribunal was dismissed on 17 December 2010. It will be necessary in due course to give a little further consideration to that decision.
Permission to appeal to the Upper Tribunal on that matter was refused on 24 January 2011, and a renewed application to appeal to that Tribunal was refused on 15 February 2011. Following that, supplementary submissions were provided which led to the Secretary of State's decision of November 2011 now under review.
Permission to appeal here from the decision of the Upper Tribunal in the judicial review matter was refused by that Tribunal and was in turn refused by Sir Stanley Burnton, sitting as a single judge of this court, on 5 February this year. The question on the judicial review was whether the applicant had established that the Secretary of State had acted irrationally or perversely in concluding a new appeal to the First-tier Tribunal, including the new material, would have no real prospect of success. The Secretary of State decided that it did not present such a prospect and the Upper Tribunal decided that that position was neither perverse nor irrational.
The question now is whether the applicant has shown that an appeal here would have a real prospect of success in accordance with the first appeals test.
The main problem for the applicant is that his fundamental factual account giving rise to the supposed right to asylum was dismissed in the first proceedings as incredible by the judge who heard his appeal. That judge found the applicant, and indeed some of his supporting witnesses, were incredible.
The application to the First-tier Tribunal on that occasion was supported by medical evidence from a Dr Moulson, stating that the evidence was, I think the expression was "highly consistent", with the application of heat to the skin and of a blow to his back. He also diagnosed PTSD.
The First-tier Tribunal judge decided, correctly in my judgment, that the credibility overall was a matter for him, and found that he was unable to believe the applicant's account when the evidence was taken as a whole. Less clear is the correctness of the First-tier Tribunal's conclusion that, as part of the decision making, doctors tend to believe accounts given to them by patients, but that while looking at the case overall, he did not accept that the physical marks were the result of events claimed by the applicant.
Following the earlier proceedings and the exhaustion of customary rights of appeal, the applicant submitted to the Secretary of State further evidence from a doctor from the Medical Foundation and from a senior accredited counsellor, who take issue in their reports with the finding of the First-tier Tribunal...
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