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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MK, Re Application for Judicial Review [2007] ScotCS CSOH_109 (26 June 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_109.html
Cite as: [2007] CSOH 109, [2007] ScotCS CSOH_109

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OUTER HOUSE, COURT OF SESSION

 

[2007] CSOH 109

 

P1951/05

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD McEWAN

 

in the petition of

 

M K

 

Petitioner;

 

for

 

Judicial Review of decisions by the Secretary of State for the

Home Department

(i) dated 27 September 2005 to remove the Petitioner from the United Kingdom to Iran on 28 September 2005; and

(ii) dated 23 February 2004 and 27 August 2004 not to treat representations as a fresh application for asylum

 

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

Petitioner: Forrest; Drummond Miller, W.S.

Respondent: Carmichael; C Mullin

 

26 June 2007

 

[1] This Petitioner is a citizen of Iran and is now aged 50. She is a married woman with three children. She is a lesbian. It is alleged that this has caused her a number of difficulties in Iran. She came to the United Kingdom in November 2001. She sought asylum in July 2002. Her claim was refused. The letter of refusal is not in the papers before me. As was her right, she appealed to an adjudicator (Mrs Murray) and her case was heard in February 2003. The Determination is No 6/2 of Process and was signed on 13 March. She then appealed to the Immigration Appeal Tribunal (the IAT) (Miss K Eshun) who refused permission to appeal. The Reasons are dated 6 May 2003 (No 6/3 of Process). It is clear that the basis of her appeal in both cases was related solely to her sexual orientation. The claim failed on grounds of credibility.

[2] What happened next is the essence of the case now before me in the amended Petition (No 14 of Process) and amended Answers (No 15 of Process). It may firstly be summarised in this way. After her appeal was refused the Petitioner alleges she came into possession of new material, placed this before the Respondent with a request that it be treated on a fresh application. The Respondent twice refused to do so and later issued directions for her removal. It is these decisions which the Petitioner wishes to reduce. The argument before me on this matter was in narrow compass and raised the question of whether the Respondent had applied the correct test in rejecting her request; whether the reasons he gave were sufficient and whether the decisions could be challenged on Wednesbury grounds. I was given a number of authorities but only a few of these were canvassed viz R (Onibiyo) v Secretary of State for the Home Department [1996] QB 768; Secretary of State for the Home Department v Boybeyi [1997] Imm. A.R. 491 and Ladd v Marshall [1954] IWLR 1489 (in passing).

[3] Mr Forrest appeared for the Petitioner and his argument was to this effect. The Petitioner only learned of the documents (Nos 6/4 and 6/5 of Process) in June 2003 when her sister sent her copies. In October her agents asked that they be treated as a fresh claim. Counsel then took me through the various letters and replies indicating what it was he wanted reduced. Accepting that the decision taker could take the view that it was not a fresh claim or a credible one, he said that the wrong test had been applied. The proper test was apparent credibility not actual credibility. While the Petitioner's sister might not be credible, there was no reason why the new documents could not be credible. In any event, the decision was unreasonable. He referred me to each of the cases I have mentioned and asked me to sustain his second and third pleas-in-law.

[4] Miss Carmichael asked me to dismiss the Petition and sustain the Respondent's pleas. She said the question was whether the decision maker was entitled to take the view she expressed in paragraphs 13 and 14 of the letter complained of (27 August 2004, No 6/11 of Process). She was not bound to accept what the Petitioner said at face value. Her reasons for rejecting were cogent. Further, on Wednesbury principles she was entitled to take the view she did. She had considered the statements for the Petitioner and her sister which were contradictory. The sister's statement was dated 20 March and so could have been put to the IAT. (Counsel accepted that errors had been made in the letters from the Home Office, 6/8 and 6/11, but argued that they were not material).

[5] The cases on credibility were not in point. In Boybeyi no decision was made on the Court decree. What was truly in issue was the explanation. Counsel referred me to the Rule in force at the time (Rule 346) and contrasted it with the current Rule.

[6] Let me turn now to look more closely at events. I do not have the original Home Office refusal letter. It is not lodged but in the circumstances that may not matter. It was a decision on the claim from which she had a right of appeal to the Adjudicator. That appeal was heard at Glasgow on 20 February 2003. It was rejected in a closely argued and reasoned document. The appellant had alleged she was in danger due to her lesbianism. Mrs Murray did not believe that. She pointed to a long delay in leaving Iran and a long delay in claiming asylum in the U.K. Not only did she not believe the appellant - she also found that she was of no interest to the authorities in Iran. Her appeal to the I.A.T was dismissed. The petitioner can have no complaint about either of these disposals.

[7] Then, however, new information was found. It arises in this way. On 8 October 2003 the present petitioner's solicitors wrote to the respondent's asking them to reconsider the refusal and proffering a new document (Nos 6/7 and 6/5 of Process). One of these bears to be a document from the Tehran Islamic Revolutionary Court. It is only a photocopy and any original must bear a signature and a stamp. I have not seen any original. However, what it says is that the petitioner was summoned to Court, failed to attend and her case was heard in her absence. It is not wholly clear what the charge against her was, but the sentence pronounced was 10 years in prison, a substantial sounding fine and 74 lashes. It is not wholly clear what is the date of the document. It could be January 2003. The summons to Court which was also part of the new information is also a copy but seems to confirm the date. Both of these documents pre-date the hearing before Mrs Murray, and were not before her. They do appear to suggest that the Petitioner was very much at risk in Iran in 2003.

[8] Why then were they not produced in Scotland? The explanation for that is found in a statement (No 6/6 of Process) from the Petitioners sister. The date on the document is 20 March 2003 but the petition before me alleges the year was 2004. It explains that she received the summons but was too afraid to tell the petitioner. Later a lawyer gave her the verdict and the sentence and then she told her sister, she does not say when and I infer she may have posted a copy and sent the original with someone travelling to the U.K.

[9] The present petitioner in her statement (6/12 of Process) alleges that she only knew of the existence of these documents after the appeal to the IAT failed and she received copies in June and the originals from "...an airline passenger...". All of this was put to the Home Office and they were asked to treat it as a new claim. It is accepted that they have a discretion about this. Further papers before me deal with her conversion to Christianity but in the circumstances no point has been taken about that.

[10] Let me dwell briefly on the two letters under challenge. No. 6/8 of Process in February narrates the tests (para 3 and 4). The reason for refusal is that the summons and opinion were available on 20 February 2003. Whether this means actually available but not received is unclear. The dates of the documents now before me show that they could have been available, but of course the sister has provided an explanation for why they were not. The August letter (No. 6/11) is longer. Again it sets out the correct tests. Paragraph 8 is an error. The error is admitted and is unfortunate. Thereafter paragraphs 9-11 follow the reasoning of the adjudicator. Paragraph 13 disbelieved the sister's account of why the Court documents were not sent to the Petitioner. As I have already noted that conclusion was attacked by Mr Forrest, and what can be said of the new documents is that they appear to show that the Petitioner was very much of interest to the authorities in Iran who seem to want to inflict severe punishment on her probably because of her lesbianism.

[11] The documents from Iran before me are in English. They are photocopies and not original documents. Nothing was said about this in the February Letter. The certificate of the translator (again, a copy) says he translated an original from FARSI and has seen a photocopy. The solicitors say they provided originals (see 6/7).

[12] I am quite clear that the matter before me raises the first stage of what may have become a two stage process. The Respondent is faced with a decision upon whether the "new" information is a "fresh claim for asylum". It is his function at first instance to decide that and he can only be challenged on Wednesbury grounds (ex parte Onibiyo 785). If he decides that it is a fresh claim, then he has to decide it on the merits and grant or refuse asylum, with all subsequent rights of appeal to the appellate authorities. In the present case the Petitioner has not overcome the first hurdle.

[13] In making his decision the Respondent has to address a number of established tests. He has power to make investigations as was done in Boybeyi (496). He had to, in this case, have regard to Rule 346 asking if the claim is sufficiently different and with a realistic prospect of succeeding. He is entitled to disregard new material which is in-significant, not credible or was available at the time the previous application was refused or any appeal determined. From the cases I conclude that apparent credibility is the test at this stage, not credibility in fact.

[14] I have come to the decision that the petitioner in this matter cannot succeed. The Respondent has considered the proper tests of whether this was a fresh claim. He has not found the sister's statement No. 6/6 to be credible. That is critical since she was aware of the Court Proceedings in December 2002 well before the Adjudicator's March decision the following year. The timing is important because further on in her statement she says it was "later on" that she sent the sentence letter by post and the original with some unknown traveller. The vagueness of all of this is confirmed by the Petitioner's own statement 6/12. In my view the Respondent was entitled to find this not to be credible even on the lower threshold. The Respondent was also entitled to the view that it could and should have been raised earlier. That is enough to dispose of the case. It has to be said that nothing has been said about the actual Court documents in the reasons. I do not think this matters since a failure to believe the sister about their history takes away the apparent seriousness of the sentences given. Accordingly the Respondent has applied the proper tests and has reached a decision which is unimpeachable on any Wednesbury grounds. I will accordingly repel the Petitioners second and third pleas in law and repel of consent her first. I will sustain the two pleas in law for the Respondent.

[15] There is one final matter. Some time after the case was taken to avizandum the Petitioner handed into Court some further documents in two sealed envelopes. I have looked at these and considered them. It is not necessary to convene the Court for further argument. Some of the papers relate to her becoming a Christian. There is another statement from the Petitioner and some further letters. None of these were before the Respondent nor could they have made any difference to what he decided. I had to disregard them.

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URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_109.html