Morteza Fafschi For Judicial Review Of A Determination Of An Adjudicator And A Determination Of The Immigration Appeal Tribunal
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Date | 15 August 2006 |
| Court | Court of Session |
| Published date | 15 August 2006 |
| OUTER HOUSE, COURT OF SESSION 2006CSOH125 | |
| OPINION OF LORD HODGE in the Petition of MORTEZA FAFSCHI Petitioner; for Judicial Review of (i) a determination of an Adjudicator; and, (ii) a determination of the Immigration Appeal Tribunal ________________ |
Act: Mr. Devlin; Drummond Miller
Att: Miss Carmichael; Office of the Solicitor to the Advocate General
15 August 2006
[1] This is an application, which the petitioner raised in December 2004, for judicial review of a determination of the Immigration Appeal Tribunal ("IAT") dated 5 September 2001 and notified on 5 October 2001. In that determination the IAT refused leave to appeal against the determination of an adjudicator dismissing his appeal against the decision of the Secretary of State for the Home Department to give directions for his removal from the United Kingdom. In his appeal the petitioner argued that he had a well-founded fear of persecution under the 1951 UN Convention Relating to the Status of Refugees ("the Refugee Convention") and that removal would breach his rights under the European Convention on Human Rights ("ECHR").
Factual summary[2] The petitioner is an Iranian national. The circumstances which he alleges were the cause of his application for asylum may be summarised shortly. He alleges that he had an adulterous affair with a woman in Tehran and that he was stopped by police in a car which he was driving in the company of that woman. Unfortunately for the petitioner, the woman turned out to be the wife of a police sergeant and he was treated in a cruel, inhumane and degrading way by the police. He was told that he would be taken to court to face a charge of adultery, for which in Iran the authorities may execute the offender. When being transferred to the court he escaped from custody and fled to Turkey. He remained for two months in Turkey, hoping that his position in Iran would improve, but when it did not and he feared that the Turkish authorities would return him to Iran, he left Turkey and came to the United Kingdom. He entered the United Kingdom on 24 July 2000, using a false passport and applied for asylum on 3 August 2000.
[3] The Immigration and Nationality Directorate of the Home Office refused his application for asylum by letter dated 14 March 2001 and the Secretary of State for the Home Department decided on 21 March 2001 to issue directions for the petitioner to be returned to Iran. The petitioner appealed to an adjudicator against that decision. On 15 August 2001 the adjudicator dismissed the petitioner's appeal. The petitioner sought leave to appeal to the IAT but in a determination dated 5 September 2001 and notified on 5 October 2001 the IAT refused him leave to appeal, holding that there was no merit or arguable point of law disclosed in the petitioner's grounds of appeal.
The relevant statutory framework[4] The determination under challenge is an application for leave to appeal to the IAT under the Immigration and Asylum Act 1999. As a result of changes in the statutory framework for asylum and immigration since the IAT made its determination in 2001, this application falls to be treated differently from applications under the new legislation. Parties were agreed that the relevant legislation was section 103A of the Nationality, Immigration and Asylum Act 2002, paragraph 30 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and Articles 6(1) and 9(4) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005 (SI 2005/565). As a result, if I were to conclude that the challenge to the legality of the determination of the IAT was well founded, parties were agreed that I should pronounce an order reducing the determination. In that event the petitioner's application for leave to appeal would be considered by a single member of the Asylum and Immigration Tribunal. I agree with that analysis.
The grounds of challenge in the petition[5] The petitioner's submission was that the IAT erred in law in finding that his appeal from the decision of the adjudicator had no real prospect of success. Mr Devlin submitted that the decision of the adjudicator was open to challenge for four principal and closely related reasons. First, he submitted that the adjudicator erred in law in excluding parts of the petitioner's claims as incredible. Secondly, he submitted that the adjudicator acted unreasonably by engaging in speculation and conjecture against the petitioner. Thirdly, he asserted that the adjudicator had failed to use due care and sensitivity in drawing conclusions adverse to credibility of the petitioner. And fourthly, he submitted that the adjudicator had acted unreasonably in failing to consider the likely punishment that the petitioner would have faced for his adultery if he had returned to Iran. As a result of these challenges, Mr Devlin submitted that no reasonable IAT could have reached the conclusion that there was no merit or arguable point of law disclosed in the petitioner's grounds of appeal.
The law to be applied to the case[6] There was substantial agreement between the parties on the legal rules that applied in this case. I summarise the relevant rules on which there was agreement before discussing parties' differences on the law in my consideration of the grounds of challenge.
[7] The legal rules on which parties were agreed were as follows. First, the court is acting as a court of judicial review and the normal grounds of legal challenge of administrative action - such as are stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 - are to be applied, but the court must scrutinise with great care a decision which could result in the removal and thus endanger the life or liberty of an asylum seeker (see Bugdaycay v Secretary of State for the Home Department [1987] AC 514). Secondly, in exercising its rigorous scrutiny of an asylum decision, the court should have regard primarily to the petitioner's grounds of appeal but, nevertheless, should intervene if the petitioner has a readily discernable and obvious point which has a strong prospect of success, which was not stated in his grounds of appeal (see R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929). Thirdly, in deciding whether an applicant for asylum has a reasonable fear of persecution for a reason within the Refugee Convention or of violation of his fundamental human rights under ECHR the standard of proof is whether there is a reasonable degree of likelihood (see R v Secretary of State for the Home Department ex parte Sivakumaran [1988] AC 958, Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271 and Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807). Fourthly, (although, as mentioned below, parties varied in their emphasis on this point) when an adjudicator makes a judgment on the credibility of an applicant for asylum, he or she must use common sense with sensitivity, making due allowance, in an appropriate case, for cultural differences, avoiding conjecture, and using the evidence before him or her to draw proper inferences (see, for example, Asif v Secretary of State for the Home Department 1999 SLT 890 and 2002 SC 182).
Parties' submissions on the grounds of challenge[8] Mr Devlin challenged the basis on which the adjudicator had decided that the petitioner's account lacked credibility. He emphasised that there required to be a nexus between an adverse finding of credibility and the decision taken on the merits of an application; a trivial or understandable discrepancy in an applicant's account should not lead to the rejection of his application. He submitted, first, that the adjudicator erred by taking a subjective approach to the assessment of the credibility of the petitioner's account of his affair with the wife of a police sergeant and of driving in a car with her in Tehran when there was a risk of being stopped by the police. He also suggested that it was inappropriate to apply the test of the reasonable man because people did commit adultery in Iran and risk the consequences. Secondly, he submitted that the adjudicator failed to take account of paragraph 198 of the UNHCR Handbook of Procedures and Criteria for the Determination of Refugee Status ("the UNHCR Handbook") in her failure to show due care and sensitivity in assessing the credibility of the petitioner's account of his affair with the wife of the police sergeant and his inability or unwillingness to name the police sergeant. The name of the lover's husband had no relevance to the petitioner's account. The guidance given in that paragraph of the UNHCR Handbook was not mentioned in the petitioner's grounds of appeal but it was, he submitted, a point which should have been obvious to the adjudicator and the IAT.
[9] Thirdly, he submitted that no reasonable adjudicator would have concluded that the petitioner was not credible because of the inconsistent accounts which he gave as to whether there was a "criminal file" opened against him, without inquiring into the nature and status of a criminal file. The adjudicator had no evidential basis for equating a "criminal file" with a formal charge. Fourthly, he submitted that the adjudicator had failed to show the necessary sensitivity and care in her rejection of the petitioner's account of the circumstances of his escape from detention and in particular her view that he had been inconsistent on whether and with how much money he had bribed his guard to obtain his release. The petitioner's account was not truly inconsistent and there was no logical or factual basis for the adjudicator's criticisms. It was not appropriate to measure the actions of the guard by the standard of the reasonable man. In relation to the bribe allegedly paid to the guard, any discrepancy in the recording of the petitioner's...
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