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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gholami, Re A Petition for Judicial Review [2005] ScotCS CSOH_29 (18 February 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_29.html Cite as: [2005] ScotCS CSOH_29, [2005] CSOH 29 |
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Gholami, Re A Petition for Judicial Review [2005] ScotCS CSOH_29 (18 February 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 29 |
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P1291/03
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OPINION OF LADY PATON in the petition of AMIRSHAHIN GHOLAMI Petitioner;
for Judicial Review of the decisions of an adjudicator and of the Immigration Appeal Tribunal in relation to appeals under Sections 65 and 69 of the Immigration and Asylum Act 1999 ________________ |
Petitioner: Govier; Wilson Terris, S.S.C.
Respondent: Drummond; HF Macdiarmid
18 February 2005
Application for asylum
[1] The petitioner was born on 24 January 1968. He is a citizen of Iran. In May 2000 he entered the United Kingdom as an illegal immigrant. He applied for asylum. [2] The petitioner was interviewed at Gatwick on 9 May 2000 with the assistance of an interpreter. During that interview he explained that he had never suffered any difficulties, persecution or harassment from the authorities in Iran. His description of the incident which caused him to leave Iran was noted in the interview record (7/4) at pages A4 to A5 as follows:"On 7.7.99 the students held a demonstration against the government and on 8.7.99 the demonstration carried on and where I was working in the shop it was in front of where the demonstration took place. The fighting started between the students and intelligence agents, who were all armed. I was on the roof of my shop watching the struggle and I saw 3 of the students run into my shop to hide. Then the intelligence agents came into the shop to look for these 3 and started to struggle with my father. They started beating my father up. Then myself and my brother tried to separate the officials from my father and they were very strong - we couldn't do anything. My father and I have a jewellery shop and workshop making gold jewellery. I hit one of the intelligence agents with a metal bar used to hold rings. Then I and my two brothers escaped from the shop, with my father ...".
"... 4. We didn't have any particular problems with the government until this incident in July 1999. The Ayatollah Khameni had stated through the media that anyone found harbouring or helping students who were involved in the protests against the government would be subjected to Mofsed-Al-Fel-Arz. Anyone [who did so] would be considered a traitor which carries an instant death sentence ...
... 5. [In July] there were crowds everywhere. I was on the roof of the building watching what was happening. The police had shouted at us to move off the roof and then a tear gas bomb was thrown onto the roof to disperse those of us there. I had just noticed that 3 students had run into the shopping mall off the street to get away from the police. When the gas bomb was thrown, I ran back to the shop. The 3 students had run into our shop and were asking for my father to hide them. The police broke into the stairway and we could hear them coming to the shop door. When we heard them in the stairwell, my father locked the door. They approached the door and started banging on it for us to open it. The students were hurried out the back. My father opened the door and there were 2 guards who pushed past him into the shop. Everyone was anxious. The guards were shouting at my father. We all started to panic. Suddenly, one of the guards grabbed at me. My father panicked and shouted at them to leave me alone. One of the guards then hit my father. He punched my father and started to hit him. I panicked. I lifted a heavy metal tool which we used for measuring and hit one of the guards on the back of the head/neck to make him leave my father alone.
6. The guard fell to the floor and was unconscious. The other guard ran from the shop to go and get help ...
7 ... we reached home. We gathered our belongings together and escaped. We knew that the police would soon be after us as it would take no time at all to get our details from the business.
8 ... The next day, our relatives told us that the police had already been to the shop and had closed it. My cousin knew the staff who worked at the shop. When he went to the shopping area, he found the security people talking to the staff. My cousin found out that one of the workers, who was gay, had told the police that I had actually raped him. I had had a row with him some days before as I had caught him stealing. He was only 16 years old and was the shop cleaner and tea boy. This was his form of revenge ...
9. My father decided that we should leave the country. He knew, as did I, that if we were caught, we would be immediately taken and executed.
10 ... After we left the country, warrants were issued against us. My cousin managed to obtain these as they had been posted in the shopping area. These warrants which have been produced show that I was tried and convicted in absence. They state that we assisted in the demonstrations...
11. My brother Abbas was taken about 3 months after we left the country. He was detained for about 3 months and then released. He couldn't give them any information about our whereabouts and they released him ...
12 ... The agent had told us that he was taking us to Canada but this turned out to be [un]true ...".
"... the adjudicator gave full consideration to each and every aspect of the claimant's account. [She] found inconsistencies in the various accounts including the oral evidence. The tribunal is of the view that the inconsistencies were material and went to the core of the claimant's claim. Therefore the adjudicator was entitled to make the findings that [she] did ...".
Determination of the adjudicator
[9] The adjudicator in her determination promulgated on 16 April 2003 noted that the petitioner was represented by counsel. Oral evidence was heard from the petitioner, and oral submissions from both representatives. Documents placed before the adjudicator included the asylum interview record, a typed statement by the petitioner, arrest warrants with certified copy translations, reports about Iran (for example, from Amnesty and the Country Information and Policy Unit), and another adjudicator's determination in the case of the petitioner's father Hassan Gholami (HX/52298/2002). [10] In paragraphs 12 to 14 of the determination relating to the petitioner, under the heading "The Appellant's Claim", the adjudicator summarised the information available from the interview record, the petitioner's written statement, and his oral evidence. [11] In paragraph 18 of the determination, under the heading "The background material", the adjudicator noted the situation in Iran, including the following:" ... By law the death penalty can be carried out for offences including murder, rape and homosexual intercourse ...
On July 8 1999, students at the University of Tehran who were protesting proposed legislation were attacked by elements of the security forces. The demonstrations continued to grow in subsequent days to include many non-students. Looting and vandalism and large scale rioting began. In September 1999 the head of Tehran Revolutionary Court Hojatoleslam Gholamhosseim Rahbarpour was quoted as saying that 1,500 students were arrested during the riots, 500 were released immediately after questioning, 800 were released later and formal investigations were undertaken against the remaining 200."
Submissions on behalf of the petitioner
[15] Mr Govier, on behalf of the petitioner, invited the court to find first, that the adjudicator failed to consider all the evidence which was before her. Secondly, esto she had considered all the evidence, she failed to make clear what weight she placed on the core of the petitioner's case. Thirdly, the adjudicator failed to provide reasons for her findings which would pass the Wednesbury reasonableness test. [16] Counsel referred to the definition of "refugee" in Macdonald, Immigration Law and Practice (5th ed.) paragraph 12-20. He acknowledged the requirement for the petitioner to establish objectively whether there was a "reasonable degree of likelihood that he [would] be persecuted for a Convention reason if he returned to his own country": R. v Secretary of State for the Home Department ex parte Sivakumaran [1988] 1 A.C. 958. Counsel then addressed the assessment of credibility in asylum cases, with reference to Professor Hathaway, The Law of Refugee Status (1991) at page 84 et seq.; Ernesto Mendes, a decision of the IAT No.12183, 6 June 1995 (the conclusions); Chinder Singh v Secretary of State for the Home Department, 9 September 1997 (Lord Kingarth) 1997 G.W.D. 34-1738, in particular his observations about finding inferences favourable to the petitioner from such consistencies as there were in the material, and also being alert to the fact that the nuances of another language may be lost in translation. Counsel also referred to Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449. [17] Turning to the determination, counsel submitted that the adjudicator's approach to credibility was flawed. The adjudicator pointed to small discrepancies relating to the tear-gas episode and the type of official who came to the shop; the implausibility of the petitioner having walked around for over four hours carrying gold and jewellery, then reaching home without encountering security forces; the inconsistency between an account of homosexuality as contrasted with an account of rape; unsatisfactory features relating to the warrants; discrepancies between the petitioner's account and the petitioner's father's account; and the petitioner's belief that he was going to be taken to Canada (thus apparently choosing the country in which he would make an asylum claim). [18] Counsel first criticised the general approach adopted by the adjudicator. His criticism was summarised in paragraph 7 of the petition as follows:"... the determination of the adjudicator was unlawful and unreasonable. She failed to examine the petitioner's claim for asylum in the correct fashion. As subsequently averred, she made a number of findings on discrete points in the evidence before her. In each of these points, she made an adverse finding on his credibility. She ignored, or appeared to ignore, other evidence adduced by the petitioner. She made no reference to the evidence given by the petitioner on the core of his case, being the events which took place in his father's shop on 7 July 1999. She made no reference to any evidence before her which afforded consistency to the petitioner's story. In particular, she made no reference to evidence in the determination in his father's appeal which was consistent with, and corroborative of, that story. She failed to make any overall assessment of the petitioner's claim for asylum. The adjudicator has accordingly failed to take into account matters relevant to the petitioner's claim and has therefore erred in law and acted unreasonably. Her determination should be reduced. Reference is made to Karanakaran v SSHD [2000] 3 All ER 449, Sattar v SSHD, 2002 S.L.T. 1397 and Chinder Singh (9 September 1997 - Lord Kingarth, unreported)."
Submissions on behalf of the respondent
[26] Counsel for the respondent invited the court to repel the petitioner's plea-in-law and to sustain the respondent's second plea-in-law. [27] The issue for the court was whether the refusal of leave to appeal was unlawful. The focus should be on the Grounds of Appeal, although it was accepted that if an obvious point with strong prospects of success cried out for a response, such a point should be taken into account even if not specifically mentioned in the Grounds of Appeal: R. v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929, at pages 945G to 946D. [28] In the present case, four matters argued by the petitioner's counsel in the judicial review hearing were not reflected in the Grounds of Appeal. Those four matters were: what was complained of in paragraph 7 of the petition (set out in paragraph [18] above), and three of the discrete matters complained of in paragraph 8 of the petition and said to have undermined the petitioner's credibility, namely the assumptions said to have been made by the adjudicator in relation to the operational efficiency of the Iranian authorities (hence the petitioner managing to reach home without encountering problems from officials); the reliance placed by the adjudicator on a discrepancy namely that the petitioner had made no mention of his brother being tortured, whereas his father had; and finally the suggestion, made for the first time at the end of paragraph 8 of the petition, that there may have been difficulties in translation. [29] Counsel submitted that none of the arguments presented by the petitioner satisfied the exacting test set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. [30] In response to the argument contained in paragraph 7 of the petition, counsel submitted that, far from ignoring the evidence about core events such as the riot and the incident in the shop, the adjudicator carefully set out that evidence in paragraphs 12 to 14 of her determination. Those paragraphs constituted a summary of the petitioner's interview record, his written statement, and his oral evidence. In paragraph 18 the adjudicator recorded background material, describing the student demonstration. Then in paragraphs 19 to 23 the adjudicator set out her findings of credibility and fact. She highlighted the difficulties which she found with the petitioner's account. She did not set out every piece of evidence, nor did she did set out every consistency between the father's account and the petitioner's account. She was under no obligation to do so: Asif v Secretary of State for the Home Department, cit. sup. approved in the Inner House in Daljit Singh v Secretary of State for the Home Department, cit. sup. In paragraph 10 of her determination, the adjudicator expressly noted that "great care must be taken before making adverse findings of credibility in asylum cases". Ultimately, in paragraph 26, for all the reasons given, she concluded that she did not accept the petitioner's account of what occurred prior to his leaving the country. Her final position was therefore that she rejected the petitioner's evidence, and she gave reasons why she did so. Once an adverse finding on the question of credibility had been reached, that was the end of the matter. Any questions of standard of proof (dealt with in Karanakaran and other authorities) flew off: Kingori v Secretary of State for the Home Department [1994] Imm. A.R. 539, at page 544 et seq. [31] Credibility was a question of fact, for the adjudicator. It was perfectly proper for the adjudicator to test the petitioner's credibility as she had done: Asif, cit. sup. at pages 188G to 189D; Kulwinder Singh v Secretary of State for the Home Department, 2000 S.C. 288, Lord Reed at page 293F et seq. The proper approach was whether the finding on credibility was so unreasonable that no reasonable adjudicator properly addressing herself to the facts and law could have made such a finding. Parliament had entrusted questions of fact to adjudicators, and courts should be reluctant to interfere. When someone's credibility had to be assessed, the evidence which he gave or answers which he provided in interview had to be looked at as a whole. Inconsistencies or incredible comments made in some parts of his account might cast doubt upon his credibility as a whole: R. v IAT ex parte Chen Liu Guang [2000] Imm. A.R. 59. [32] Counsel for the petitioner had referred to Professor Hathaway, but the passage at page 84 commenced with a reference to a presumption (relating to taking an oath to tell the truth) which had no place in United Kingdom law. The passage should therefore be treated with a degree of caution. [33] Having made the adverse finding on credibility, the adjudicator did not have to go any further. However she had done so. In paragraph 27, the adjudicator proceeded to consider, on an esto basis, the position if she were to accept the petitioner's account as credible. She summarised that position as "prosecution rather than persecution". The petitioner had not challenged paragraph 27. Accordingly, even if the adjudicator had reached some Wednesbury unreasonable view on credibility, the adjudicator's conclusion as set out in paragraph 27 still stood. There was no error connected with that paragraph which was obvious in the sense used in Robinson, cit. sup. Such an error had to be a material error giving rise to an appeal with a real prospect of success. An error which was de minimis would have no effect: Hanif v Secretary of State for the Home Department, 1999 S.C. 337, at page 344I. [34] Turning to the petitioner's attack on the discrete points which were held to undermine the petitioner's credibility, counsel for the respondent submitted that the adjudicator was entitled to regard each point as significant, and the points cumulatively as having the effect of undermining credibility. It was not obvious to the IAT that the discrepancies and unsatisfactory features relied upon must have arisen through translation errors. That had never been suggested in the Grounds of Appeal. The adjudicator was peculiarly well-placed to make an assessment of credibility, having seen and heard the petitioner give evidence. Her decision on credibility was within the reasonable range of decisions open to her. It was reasonable when assessing credibility for the adjudicator to take account of inconsistencies; doubts about the warrants (which did not in fact demonstrate what the petitioner said they would); discrepancies between the petitioner's account and his father's account; and also the fact that the petitioner thought that he had been destined for Canada. In connection with that latter matter, it was notable that the petitioner had not sought asylum in Turkey, Bosnia or Slovenia. It appeared that he had chosen to travel to Canada, but had been let down by his agent. That was not consistent with a refugee fleeing and seeking asylum in the first available Convention country. Accordingly, there had been ample material before the adjudicator upon which she could reach her conclusion on credibility. [35] Counsel concluded by submitting that the adjudicator's findings were proper and reasonable in the Wednesbury sense. In any event, paragraph 27 of her determination remained unchallenged. There was ample material demonstrating that the petitioner faced prosecution, not persecution, on his return to Iran. The petitioner's plea-in-law should be repelled, the respondent's second plea-in-law sustained, and the petition dismissed.Opinion
[36] The first two arguments presented by counsel for the petitioner and outlined in paragraph 7 of the petition were not included in the petitioner's Grounds of Appeal. They were not therefore brought to the attention of the IAT. Nevertheless it is necessary to bear in mind the guidance given in R. v Secretary of State for the Home Department ex parte Robinson [1998] Ch. 929, and to consider whether those arguments relate to an error or errors which were readily discernible and obvious, and whether those arguments, if pursued before the IAT, would have had strong prospects of success and would have made all the difference to the appeal. [37] In my view, no such errors can be identified, nor can the arguments be said to have had strong prospects of success. The adjudicator in her determination accurately summarised the petitioner's claim, including his description of what took place in his father's shop. She further recorded background material about the student riot, consistent with the petitioner's claim. She referred to the determination in the petitioner's father's appeal, thus clearly taking it into account. Having set out the petitioner's account and other evidence, the adjudicator was under no obligation to "carry through a mechanical process of narration of the evidence, analysis of it into classes, and explanation factor by factor of the relevance, or irrelevance, credibility and reliability or otherwise of it". Lord Penrose at page 894G-H of Asif v Secretary of State for the Home Department, 1999 S.L.T. 890, approved in the Inner House in Daljit Singh v Secretary of State for the Home Department, 2000 S.C. 219. [38] The adjudicator was entitled to make an assessment of the petitioner's credibility before proceeding any further. She did so, in paragraphs 19 et seq. Ultimately, for the reasons which she gave, she made a finding adverse to the petitioner. The approach to credibility is dealt with further in paragraph [41] et seq. below, in response to the petitioner's third argument. [39] In those circumstances, I am unable to accept that the adjudicator failed to examine the petitioner's claim in the correct fashion, and that she failed to take into account all the evidence which was before her. Nor can I accept the petitioner's secondary argument that esto the adjudicator considered all the evidence, she failed to indicate what weight she placed on the core of the petitioner's case. In my view, it is quite clear from her determination that the adjudicator considered all the evidence, made an adverse finding relating to the credibility of the petitioner for the reasons which she gave, and as a result placed no weight on the petitioner's account, including his account of the core of his case. [40] The petitioner's third argument, outlined in paragraph 8 of the petition, was in general reflected in the Grounds of Appeal placed before the IAT. However three points had not been included in the Grounds of Appeal, namely the assumptions said to have been made by the adjudicator about the operational efficiency of the Iranian authorities; the reliance placed by the adjudicator on a discrepancy namely that the petitioner had made no mention of his brother being tortured, whereas his father had; and finally the suggestion (made for the first time at the end of paragraph 8 of the petition) that there may have been difficulties in translation. Those three discrete points would not in my view satisfy the Robinson test referred to in paragraph [36] above. Accordingly, the IAT's refusal of leave to appeal cannot be criticised so far as those points are concerned. The remaining points, which were contained in the Grounds of Appeal, challenged the adjudicator's approach to credibility. It was said that the adjudicator acted unreasonably and unlawfully in finding certain aspects of the petitioner's account to be incredible. [41] In considering that argument, I refer to Kulwinder Singh v Secretary of State for the Home Department, 2000 S.C. 288, where Lord Reed noted at page 293F-H that:"... a special adjudicator must be careful before rejecting an asylum-seeker's account as incredible, given that the decision under appeal is said to be one which may put the appellant's life at risk, and given also the cultural, linguistic and other difficulties (including those described in para 198 of the UN Handbook) which may affect a genuine asylum-seeker. Nevertheless I must also bear in mind that credibility is a question of fact (cf. R v Secretary of State for the Home Department, ex parte Agbonmenio). Such questions have been entrusted by Parliament to the tribunal of fact - in this case, the special adjudicator - and it would be constitutionally improper for the court to interfere with that tribunal's assessment except on Wednesbury grounds. It is also important - especially in a case such as the present, when the court has the same evidence before it, in the same form, as the special adjudicator - to bear in mind that the special adjudicator has been specially appointed to hear asylum appeals and has the benefit of his own training and experience in dealing with asylum-seekers from different societies and cultures: something of which a judge is unlikely to have any comparable experience. As Sir Thomas Bingham MR (as he then was) observed in Sahota v Immigration Appeal Tribunal at page 506: The present field is one in which it is tempting for the court to stray into taking its own view of the facts. That is a temptation which the court must resist. A court's function is limited to a review of the challenged decision on one or more of the familiar grounds ...".
"... The appellant's son [the petitioner] hit one of the officers with a metal ring sizer and knocked him unconscious. While the other officer was tending to his colleague, the appellant escaped through the back of the shop with jewellery and gold. He and his sons went straight home and picked up his wife and children and went to stay at a friend's house. The appellant phoned his nephew who worked in the shop to tell him where he was. His nephew later advised that the police were looking for the appellant's address. The appellant knew that he and his son would be sentenced to death as they had injured one of the officers [italics added] ...".
Conclusion
[48] For the reasons given above, it is my view that the adjudicator did not err in any of the ways outlined in the Grounds of Appeal, or as argued at the first hearing of the judicial review. Nor was there, in the material before the IAT, a readily discernible and obvious point in favour of the petitioner, having a strong likelihood of success: cf. R. v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929. I am not therefore persuaded that the IAT erred in refusing leave to appeal. [49] I shall accordingly repel the petitioner's plea-in-law, sustain the respondent's second plea-in-law, and dismiss the petition.
