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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Atabaky, R (on the application of) v Secretary Of State For Home Department [2001] EWCA Civ 1615 (18 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1615.html Cite as: [2001] EWCA Civ 1615

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE SULLIVAN)

		Royal Courts of Justice Strand London WC2 Thursday, 18th October 2001

Thursday, 18th October 2001.

1. LORD JUSTICE JUDGE: This is a renewed application by Temour Atabaky for permission to appeal against a decision of Sullivan J dated 15th June 2001 refusing him permission to apply for judicial review of a decision by the special adjudicator dated 12th September 2000. The special adjudicator upheld the determination by the Secretary of State for the Home Department dated 12th May 2000 that the applicant did not qualify for asylum. The Secretary of State further certified that the claim was one to which paragraph 5(4)(a) of schedule 2 to the 1993 Act (as amended) applied, because the applicant did not show a fear of persecution by reason of race, religion, nationality, membership of a particular social group or political opinion. The application was refused on the papers then before him by Mance LJ on 7th August 2001. The application which appears before us is significantly different and much more deeply considered than can have emerged from the papers which Mance LJ saw. We are very grateful to Mr Manjit Gill QC for the care that he has taken in the preparation of this application (we understand his part had to be put together at very short notice).

2. The applicant was born in Iran on 20th February 1971. His case is, in very brief summary, that in March 1999 he joined the United Front of Iranian Nationalists (UNIF) an organisation which, dealing with the matter in the very broadest and most unspecific terms, is pro democracy and anti the current regime in Iran. In 1998 (according to his case) he was beaten up by the Iranian authorities for having a girlfriend. Whether that triggered off his political interest or not is unclear; but he says that during anti-government demonstrations in Teheran in July 1999 (which ran on for a number of days) he was involved with other members of UNIF in the distribution of leaflets and seeking to attract interest in and to promote their organisation among other members of their community.
3. On 13th July 1999 the applicant said that he saw his colleagues and other members of UNIF being beaten and arrested by plain clothed revolutionary guards. In fear for his safety, he ran away, unfortunately leaving his briefcase in his car. That briefcase contained papers which disclosed his address, so he felt unable to return home and went into hiding. On his case it is fortunate that he did so because many hundreds of the demonstrators from the July 1999 demonstration were very harshly dealt with, some of them disappearing and three of them being subjected to death sentences.
4. He decided to flee to this country. He eventually arrived here on 29th February 2000. He applied for asylum. Since then, again according to his case, he has been active in demonstrations in this country against the authorities in Iran, and he feels sure that his identity as a protester will have come to their notice. As already indicated his application was rejected by the Secretary of State on 12th May 2000 and the certificate under paragraph 5(4)(a) of schedule 2 was granted.
5. Thereafter, he appealed to the special adjudicator. There was an oral hearing on 29th August 2000. Both sides were represented by counsel. The applicant gave evidence and was cross-examined. The decision was promulgated on 12th September 2000. The special adjudicator summarised the contentions on each side. He acknowledged the evidence of human rights abuses in Iran, saying:

"I see no reason to doubt the general accuracy of any of the materials, which come from responsible and well-informed sources. I accept there are human rights abuses in Iran."

6. Essentially and critically he explained his reasoning in paragraphs 19 to 22 of the determination. He said that he did not "believe all he [the applicant] says", and then towards the end of it:

"Even if this is true, in my view, it is no more than a well meaning but unconvincing attempt to support the Appellant's transparently unfounded Application."

7. He then upheld the certificate and dismissed the appeal.
8. The application for permission to seek judicial review of this determination relies on two essential grounds: first, that the adjudicator had been wrong in law in upholding the certificate; and second, that the adjudicator's findings were perverse and unreasonable.
9. We have considered the papers recently submitted to us. We have come to the conclusion that permission should be granted to bring this case to the full court for consideration whether the decision of Sullivan J on the certification issue was correct. A similar point arose and was considered at first instance by Stanley Burnton J in Gavira v Secretary of State for the Home Department, in the Administrative Court on 4th April 2001. It is likely to arise again. We note that the issue of a certificate by the Secretary of State creates a restriction on appeal rights in this difficult and sensitive area. The situation is made more (not less) complicated on occasions, by the principle that judicial review remains a discretionary remedy. Trying to express the point simply, it is whether, and if so in what circumstances, it can be appropriate to refuse judicial review of an erroneous decision by the special adjudicator upholding a certificate which thus deprives the applicant of the appeal process to which he would otherwise be entitled, on the basis that the court deciding the judicial review issue has formed a view that an opportunity to appeal to the Immigration Appeal Tribunal would be likely to fail or would fail in any event.
10. There are, as Mr Gill submitted, further elements relating to what can be summarised compendiously as human rights arguments which arise in this connection.
11. We have had greater difficulty with the application for permission on the second ground, that is to say the reasons argument. The conclusion to which we have come is that in order to ensure that the issues which arise in relation to the certificate can be fully argued we should also give permission for the reasons issue to be argued in the same hearing. In doing so I respectfully remind Mr Gill that reasons can be adequate and clear, although they are briefly stated.
12. We are troubled about the length of time all this process may involve. If the Secretary of State is right in his decision in relation to the certificate, then this applicant has, in effect, been in this country for far too long already. If this court were to hold that he was wrong in relation to the certificate then the matter would have to go for yet further hearings. In those circumstances we shall ask that the hearing of the appeal should include (if appropriate) a decision by this court on the judicial review application originally before Sullivan J. The Home Office should be informed of that view. The court should include at least one member with particular experience in this area of work.
(Application granted; detailed assessment of claimant's costs).