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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Arzpeyma, R (on the application of) v Immigration Appeal Tribunal & Anor [2002] EWHC 2395 (Admin) (04 November 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2395.html Cite as: [2002] EWHC 2395 (Admin)

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IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th November 2002

 


1. This is an application for Judicial Review of the refusal by the Immigration Appeal Tribunal (Mr Rapinet, Vice President) to grant leave to appeal from the decision of an Immigration Act Adjudicator. The decision of the Immigration Appeal Tribunal was notified on the 9^th October 2001, although dated the 25^th September 2001. Mr Rapinet refused leave to appeal in the following terms:

"I nevertheless refuse leave as in my view the grounds amount to little more than a disagreement with the Adjudicator's findings notwithstanding their prolixity. He has dealt throughout and with care with the written and oral evidence before him and his findings are in my view sound.

In the opinion of the Tribunal, the respondent was justified in the decision taken and it agrees with the determination of the Adjudicator which disposes no misdirection of law or wrong exercise of discretion.

In the opinion of the Tribunal this is not a proper case in which to grant leave, and such leave is refused."

2. The decision of the Adjudicator is set out in 28 paragraphs over 15 pages. The conclusions, taken from paragraphs 27 and 28 are as follows:

"I have found that at all times the Iranian authorities have not had an interest let alone an adverse interest in the appellant and that he would be at risk of ill treatment if he was to return to Iran.

The appellant does not have a well founded fear of persecution for the Convention reason of political opinion if he was to return to Iran. He has not discharged the burden of proving that he is a refugee according to the definition contained the Convention. To remove the appellant to Iran would not place the United Kingdom in breach of its obligations under the Convention. I dismiss the appeal."

3. The Adjudicator reached that decision after a detailed explanation as to why he had concluded that the claimant was not credible. At paragraph 17 of the determination the Adjudicator said this:

"I have considered the issue of credibility. I have considered whether the appellant provided a credible account of events and was a credible witness. In considering the issue of credibility I have fully borne in mind the objective evidence contained in the assessment and in the documents comprised within the appellant's schedule of essential reading. I am aware that the Iranian government's human rights record remains poor, that the government has been responsible for numerous extra judicial killings, that political activists have disappeared and that the Iranian authorities practice torture on those whom they detain. I am aware that the Iranian court system is not independent and is subject to governmental and religious influence and that the justice system does not provide fair public trials. I have fully borne in mind the objective evidence. Nevertheless, on account of serious inconsistencies to be discerned when the evidence adduced at the hearing is considered, I find that the appellant did not provide a credible account of events and was not a credible witness. Indeed, I find that the appellant at the date of his departure from Iran and indeed at the date of the hearing was not of interest, let alone of adverse interest to the Iranian authorities."

4. Over the next six paragraphs the Adjudicator then addresses the issue of credibility in considerable detail. The claimant, by his counsel Mr Patrick Lewis, has subjected the Adjudicator's reasoning in those paragraphs to intensive examination.

5. At this stage in the judgment I would prefer to set out the facts. However what did or did not happen to the claimant is a matter of some contention. The barest outline can be taken from the determination. The claimant is a citizen of Iran. He was born on the 11^th February 1944 and is now 58 years old. He applied for and was granted a single entry visit visa at the British Embassy in Tehran on the 22^nd November 1994. He arrived in the United Kingdom on the 5^th February 1995. He was granted six months leave to enter the United Kingdom subject to a condition prohibiting employment and recourse to public funds. On the 25^th May 1995 the appellant claimed asylum. That claim was refused by the Home Office, the reasons being set out in a letter dated the 4^th May 2000. Although, in the opinion of the Home Office, the claimant did not qualify for refugee status it was considered right in the particular circumstances of his case to grant exceptional leave to remain in the United Kingdom until the 4^th May 2004. The Immigration Appeal Tribunal, when refusing leave to appeal noted that it was arguable that the Adjudicator should not have dealt with the appeal at all as exceptional leave was granted before the coming into effect of Section 65 of the Immigration and Asylum Act 1999. The Immigration Appeal Tribunal then said this:

"I do not consider that the asylum claim should have been dealt with at this stage by the Adjudicator."

Although this point is touched on in the written grounds and the Secretary of State's detailed grounds of resistance as an interested party, it was not the subject of oral submissions and did not appear to me to be a matter of contention between the parties. Accordingly I have not considered it necessary to form my own opinion on this aspect of the case.

6. The main questions, or issues for the Adjudicator to consider were –

• The extent of the claimant's involvement with monarchist causes in Iran;

• The proposed visit by the claimant to Mr Bakhtiari in Paris in 1991;

• Why the claimant left Iran;

• How the claimant left Iran;

• Why the Claimant claimed asylum when he did;

• What he did during his time in the United Kingdom.

7. All of these issues, and more, are addressed in the Adjudicator's determination.

8. The claimant gave evidence before the Adjudicator, and he has made at least three statements, there is a first statement which appears to have been put together by the claimant's then solicitors from a document written by the claimant in Farsi. It is likely that that statement was made shortly after the claim to asylum in 1995. The second statement, made after the claimant transferred solicitors to his present representatives appears to have been made on the 20^th October 1999. A final statement, referred to as an updating of the claimant's case, appears to have been made on the 18^th June 2001. None of the witness statements that I have seen are dated or signed.

9. Apart from the claimant the only other witness was Fereydoun Amir-Ebrahimi. His statement appears to be dated the 18^th June 2001 but, as with the statements of the claimant, is neither signed nor dated. Mr Amir-Ebrahimi gave evidence before the Adjudicator. His evidence was summarised by the Adjudicator at paragraphs 12 and 13 of his determination. These are the only references in the determination to this evidence.

"12. At the hearing the appellant relied on a witness statement of Mr Amir-Ebrahimi. Mr Amir-Ebrahimi has lived in the United Kingdom for more than 30 years. He has been involved with the Iran Party as a member of the Central Committee and as a leader of the youth organisation of the party, the Iran Party is a social democratic party and is not a monarchist party. Mr Amir-Ebrahimi has known the appellant for five years. Mr Amir-Ebrahimi is aware that in Iran the appellant was involved with pro-monarchist organisations. He is aware that the appellant was selected from the monarchist supporters to visit Mr Bakhtiari in Paris. However, Mr Bakhtiari was assassinated before the meeting could take place. Mr Amir-Ebrahimi has heard through his own sources of the execution of Mr Farhamand. Mr Amir-Ebrahimi believes that the appellant is at risk of serious harm if he returns to Iran. The risk arises as a result of his political activities, his role in the Nowzheh who, the aftermath of the Qazvin riots, the arrest of Mr Taghdimi and the arrest and execution of Mr Farhamand.

13. At the hearing Mr Amir-Ebrahimi gave evidence. His evidence broadly reflected the contents of his witness statement. He was not cross-examined."

10. Whether or not the Adjudicator should have said more about this evidence is of some importance in the claimant's challenge.

11. Before I look at the grounds of challenge, it may be appropriate to consider the scope of judicial review. This is an application for judicial review of a decision of the Immigration Appeal Tribunal. As with any other exercise of power by a public body, an error of law by the Immigration Appeal Tribunal will be likely to lead to intervention by the court. However, the court should be careful to ensure that a judicial review challenge does not slide into an appeal on the merits - that would be impermissible. A court must not stray into taking its own view of the facts - that task is for the Secretary of State and for the appellate authorities alone. A judicial review challenge must be founded in public law: has there been a wrong application of a legal principle, or a misunderstanding or misdirection of a legal principle or the misconstruction of a statutory provision; is the decision one that no reasonable Immigration Appeal Tribunal (or Adjudicator) could have reached, or has there been disregard of relevant material, or regard for irrelevant material? A rationality challenge could even extend to an error in reasoning, impaired logic, or, perhaps, a failure to deal with points of substance raised by the appellant. It may also be said that such challenges are more properly included in an allegation that the decision maker has failed to give the appellant a fair hearing or has in some way failed to discharge the obligation to act in accordance with the principles of procedural fairness.

12. Where there are findings of fact - as in this case - the reasoning should not be subjected to minute, over rigorous or over elaborate critical analysis. The written statement of reasons must be read broadly and fairly.

13. Where the findings of fact are narrowed down to an issue of credibility then the court must at all times bear in mind that the decision maker (here the Adjudicator) is particularly well placed to make such findings given that he has heard live evidence and has had the opportunity to assess the reliability of witnesses who appeared before him. For that reason alone a judicial review court should be most cautious before questioning a credibility finding.

14. In written supplementary submissions on behalf of the interested party, Mr Gerard Clarke drew my attention to the decision of the Court of Appeal in Secretary of State v. Maheshwaran [2002] EWCACIV 173 where at paragraph 31, the court said this:

"We agree with the Judge that it does not follow that because there have been inconsistencies between what was said in a claimant's interview and in his evidence or in different parts of his evidence the claimant's evidence should be radically discounted by the Adjudicator. What he makes of those discrepancies is a matter for the Adjudicator in each case. In the present case, judging simply by what is contained in his determination, we see room for the view that the Adjudicator gave more weight to the discrepancies than others might have done. However, the decision whether to give permission to appeal is one for the Immigration Appeal Tribunal. No error of law can in our judgment be found in the Adjudicator's determination nor can we discover any such error in the way the Tribunal approached its task when deciding to refuse leave to appeal."

15. Mr Lewis' challenge to the reasoning and conclusion of the Adjudicator is set out under four headings –

1. The claimant's French visa;

2. Additional alleged discrepancies in the claimant's evidence;

3. Delay in claiming asylum;

4. Failure to consider the evidence of Mr Amir-Ebrahimi..

I will consider those four headings in turn.

The claimant's French visa

16. In his statements supporting his claim for asylum the claimant has emphasised that he had been an important enough supporter of opposition policies in Iran to be sent to see Mr Bakhtiari in Paris. That event is described in paragraph 15 of the claimant's first statement as follows:

"In addition to our collective activities, I also attended sessions of the Party of Iran and we had many discussions with the party's leaders in Iran like Mohandes Zirakzadeh, Ardlan, Abdelalibazargan, Askotti, Saddi and Niyani. On the one hand, Dr Bakhtiyar in France had to some extent succeeded in uniting the groups opposed to Khomeini's regime, including the monarchists, the Party of Iran, the Fedayeen-E Khalq and the Democratic Party of Kurdistan, in order to overthrow the Khomeini regime. I had been seeking to mobilise and unite anti-regime forces, to use popular uprisings and to take action against the regime to overthrow it.

It was at this time that I was asked by the Party of Iran whether I would go and receive Bakhtiyar's policies and directives if all the initial work was done. I expressed interest, they sent me an invitation and I got a visa. However, a short time before I was due to go, the Khomeini regime killed Bakhtiyar and I therefore decided against travelling to France. The visa is in my passport (Bakhtiyar was killed on 15 Mordad 1370 - 6 August 1991)."

17. This incident was touched on again by the claimant in his third witness statement at paragraphs 3 and 24:

"3. I repeat that the individuals with whom I worked from other parties, during the period after my discharge from the Army, held senior positions under the Shah. It is relevant that I was chosen to go and see Mr Bakhtiri (the last Prime Minister of Iran) in Paris in 1991. Bakhtiri (who was from the Iran Party) was trying to build a coalition of opposition groups outside of Iran. I was to go from the monarchist side. Bakhtiri himself was of course an ex Prime Minister. The perceived nature of this threat to Iran could be seen from the fact that he was murdered by agents of the Islamic Republic just at the time I was meant to be seeing him. This shows the high level of activities that I was involved with at that time.

24. The Secretary of States holds against me the apparent discrepancy over the date of my French visa which post-dates back to his assassination. I accept that this is the case. But it is not a discrepancy. The position is however that I applied for this visa before Bhaktiari was killed but it was only issued afterwards. Of course by the time it was issued then it was no use to me. The original Farsi and the translation of my statement are slightly misleading in this respect. When I heard of Bakhtiari's death I asked for the papers back, but they kept them all until October, when I got the passports back, with the visa granted."

18. The claimant's evidence before the Adjudicator is summarised and in part set out verbatim in paragraph 18 of the determination. The Adjudicator dealt with this issue towards the end of paragraph 18 as follows:

"The appellant has provided inconsistent accounts of events. In the first witness statement at B10 of the Home Office bundle he maintained the sequence of events which I have described above. Importantly, it comprised a sequence of events in which he received a visa before Mr Bakhtiari was assassinated. At the hearing, the appellant attempted to explain why the visa had been issued on 21^st October 1991, after the assassination of Mr Bakhtiari. He maintained that the visa was issued some months after the assassination of Mr Bakhtiari. I find that the inconsistency seriously damages the appellant's credibility. I find that at the hearing the appellant was anxious to explain why the visa had been issued on 21^st October 1991, months after the assassination of Mr Bakhtiari, when the purpose which underlay the application for the visa was in order to visit Mr Bakhtiari in France."

19. Before me the claimant challenges the Adjudicator's conclusion, and thereby the refusal by the Immigration Appeal Tribunal to grant leave to appeal, on the basis that there simply is no inconsistency or contradiction in the claimant's evidence. All there is, according to the claimant, is explanation, the essential fact being that there was an application for a visa before Dr Bakhtiari was assassinated. The fact that that application was not granted until October is irrelevant and does not undermine the submission made on the claimant's behalf before the Adjudicator that his purpose in seeking the visa was to enable him to go to Paris.

20. The Secretary of State's response is that the evidence of the claimant in his first witness statement "amounted to a clear assertion that the visa was in place before the assassination, a stance that changed in a third witness statement in the manner noted by the Adjudicator."

21. Although I can see some force in the claimant's criticism of the Adjudicator's conclusion, I am unable to go so far as to hold that the Adjudicator committed an error of law in reaching the view that the original statement did at least give the impression that the visa was applied for and obtained before Dr Bakhtiari's assassination.

Additional alleged discrepancies

22. The Adjudicator refers to additional discrepancies or material inconsistencies in paragraphs 19, 20 and 21 of the Determination.

23. These paragraphs are criticised by the claimant on the basis that the Adjudicator was mistaken to conclude that the additional information given in the second and third witness statements was inconsistent with the information given in the first witness statement.

24. Again, although I have some force in the submissions made by Mr Lewis both in his written argument and in the course of oral submissions I do not consider that the reasoning of the Adjudicator discloses an error of law or that the reasoning is so inadequate that the Immigration Appeal Tribunal should have granted leave to appeal.

Delay in claiming asylum

25. This is addressed in paragraph 22 of the Adjudicator's submission, the last three sentences reads as follows:

"I do not accept that the appellant has credibly explained why he did not promptly claim asylum in the United Kingdom. The appellant has not credibly explained why he delayed a period of 3½ months after arriving in the United Kingdom before he claimed asylum. I find that his credibility is damaged by his failure promptly to claim asylum in the United Kingdom."

26. The claimant challenges this conclusion on the basis that there was a perfectly rational explanation for the delay. The claimant needed a period of respite prior to claiming asylum and the claim itself was triggered by news from Iran that Mr Farhamand had been arrested, and by the advice that he should not return to Iran because, if he did, he would be arrested and executed.

27. Although it is correct that the claimant has put forward an explanation for the delay it does not follow that the Adjudicator was not entitled to form his own view as to the reliability of that explanation or as to the impact of the explanation and the delay on the claimant's credibility.

28. I do not consider that this criticism, taken alone or in combination with the other criticisms of the Adjudicator's determination, it is such as to lead me to conclude that the Adjudicator (and thereby the Immigration Appeal Tribunal) was guilty of some error of law in the rejection of the claimant's appeal or application for leave to appeal from the Adjudicator's decision.

The failure to consider the evidence of Mr Amir-Ebrahimi

29. I have already referred to Mr Amir-Ebrahimi's evidence and how it was dealt with by the Adjudicator in paragraphs 12 and 13 of the Determination. Mr Lewis' submission, put shortly, is that the Adjudicator was under a duty to state whether he accepted or rejected the evidence of Mr Amir-Ebrahimi. He points out that the evidence of Mr Amir-Ebrahimi corroborated the centrepiece of the appellant's statement including his prominence as a political activist both in Iran and in the United Kingdom and his selection to meet with Mr Bakhtiari in Paris. He also confirms the arrest and execution of a co-conspirator.

30. Although, as already noted, I am satisfied so far that the Adjudicator's treatment of the evidence, and the issue of credibility in particular was adequate and disclosed no error of law I am concerned that the important corroborative evidence of Mr Amir-Ebrahimi was not adequately addressed by the Adjudicator in the course of his careful determination. The Secretary of State, through Mr Clarke, submits before me (as he did in his acknowledgement of service) that the Adjudicator was entitled to attach no weight to the evidence of Mr Amir-Ebrahimi.

31. The difficulty with the Secretary of State's submission is that it does not address the apparent failure of the Adjudicator to consider the evidence at all. If the Adjudicator was attaching no weight to this evidence, for whatever reason, then in my view the Adjudicator should have said so and should have explained why this evidence was being rejected. In my view it is not for the Secretary of State to speculate as to the Adjudicator's view of the evidence even if the speculation is both plausible and sensible.

32. In his grounds of appeal to the Immigration Appeal Tribunal - at paragraphs 10 and 11 - the claimant drew particular attention to the failure of the Adjudicator to make any findings in relation to the evidence of Mr Amir-Ebrahimi. Although Mr Rapinet, when refusing permission to appeal, described the grounds as amounting to "little more than a disagreement with the Adjudicator's findings notwithstanding their prolixity" and that the Adjudicator "dealt throughout and with care with the written and oral evidence before him", it seems to me that the claimant was reasonably entitled to expect that the Immigration Appeal Tribunal would also deal with the issue of Mr Amir-Ebrahimi's evidence.

33. An application for asylum, and any subsequent appeal deserves very careful scrutiny. In my judgment a claimant is entitled to expect an Adjudicator to address any material put before him and to explain, if this be the Adjudicator's conclusion, why that material is not accepted by the Adjudicator as supporting the claim for asylum.

34. For these reasons, my decision is that this application for a Judicial Review should be allowed.

- - - - - - - - - - - - -

MISS HOOPER: For the reasons set out in the judgment handed down, my decision is that this application for a judicial review should be allowed. Any applications?

MISS HOOPER: My Lord, I have an application for costs in this matter in the usual----

MR NIGEL PLEMMING: I cannot hear you, can you speak up?

MISS HOOPER: My Lord, I have an application for costs in the usual order?

MR NIGEL PLEMMING: Was there a taxation as well, or is your client privately paying?

MISS HOOPER: I believe it is a legal aid matter, so there should be a taxation.

MR NIGEL PLEMMING: Is there a certificate lodged?

THE ASSOCIATE: Yes, there is.

MR NIGEL PLEMMING: Anything to say on costs.

MISS GALLAFENT: My Lord, we do not oppose that.

MR NIGEL PLEMMING: A cost order in the normal form with an assessment under the Legal Aid Regulations. Thank you very much.

MISS GALLAFENT: My Lord, the only question is the actual terms of the order, I have raised it with my learned friend, the bundle that I have received at page 12 sets out details of the remedy being sought. My Lord will see at paragraph 1 a quashing order is sought, and at paragraph 2 a mandatory order requiring the defendant to grant leave to appeal the determination of the Adjudicator.

MR NIGEL PLEMMING: Thank you for drawing my attention to that. My intention was that only paragraph 1 would be granted.

So the order of the court is that the determination of the Tribunal be quashed, thereby leaving to the Immigration Appeal Tribunal the opportunity of reconsidering the case. Thank you very much.