Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 118
P428/12	OPINION OF LADY CLARK OF CALTON in the petition of AV (A.P) Petitioner; for Judicial Review of a Decision of the Secretary of State for the Home Department dated 11th March 2012 refusing to treat the petitioner's further submissions as a fresh claim. ­­­­­­­­­­­­­­­­­________________

Petitioner: Forrest; Drummond Miller

Respondent: Olsen; Office of the Advocate General

13 July 2012

Summary
[1] The petitioner is an Iranian national. He arrived in the United Kingdom on 23 September 2010. He claimed asylum on the same date. This was refused. Thereafter following unsuccessful appeal procedure, a letter dated 23 February 2011 (6/2 of process) was submitted on behalf of the petitioner. That letter and accompanying documentation (6/2 of process) were considered by an official acting on behalf of the Secretary of State who concluded that they did not amount to a fresh claim. The decision letter dated 11 March 2012 is 6/1 of process.

[2] At my request counsel for the petitioner and respondent produced at short notice written notes of argument. I am most grateful for their assistance.

Submissions by Counsel
[3] The note of argument for the petitioner is 11 of process. Counsel for the petitioner sought reduction of the decision dated 11 March 2012 (6/1 of process). In his written submissions, which he adhered to in oral submission, he restricted the case for the petitioner.

[4] Counsel set out a summary of the applicable law in paragraph 3 of 11 of process. He relied on case law which is well settled in relation to the application and interpretation of Immigration Rule 353 and the approach by the court to judicial review of the Secretary of State's decision making. I did not understand that there was any dispute by the parties about the applicable law. The dispute related to the way in which the respondent considered the only two documents now said to be relevant by the petitioner. These documents are the letter of warning and the summons contained in 6/2 of process.

[5] In paragraph 4 of 11 of process, counsel set out three reasons as the foundation of his criticisms of the approach of the respondent. Counsel for the petitioner focused on the respondent's reasoning in paragraph 39, paragraphs 41-42 and paragraph 43 of 6/1 of process. In said paragraphs the respondent gives specific consideration to the two said documents. Counsel submitted firstly that it was irrelevant that the respondent had rejected the petitioner's case in relation to his student status. Secondly, the respondent's approach to the new documents was said to be unreasonable. Thirdly, it was submitted that the criticisms made by the respondent about the provenance or origin of the documents was wrong. Counsel submitted that the said documents appear to originate and be issued by the Iranian authorities. He submitted that documents of this type assist the petitioner to meet the low threshold test which is all that is required in cases under Immigration Rule 353. In conclusion, he submitted that the respondent had erred in concluding in all the circumstances that there are no realistic prospects of success before another judge.

[6] To take account of the restriction which had been made to the petitioner's case, counsel for the respondent revised his written note of argument (12 of process).

[7] Under reference to the determination and reasons dated 6 December 2010 (6/3 of process) counsel for the respondent referred to the reasoning of the immigration judge and the conclusions at paragraph 44. He submitted that this was a case in which the immigration judge decided that he did not find the petitioner's account in the least credible. He did not find that the petitioner was a student or that he took active part in student demonstrations or that he inflicted an injury on a member of the security forces with whom he had been engaged in some form of struggle. He did not find that the petitioner had come to the adverse attention of the authorities, either those at the university at which he had claimed to attend, or security authorities generally. He did not find any grounds to believe the petitioner to be at risk of adverse attention on that basis if returned to Iran.

[8] Counsel for the respondent submitted that this was a case in which the petitioner's account and the documents on which he had initially relied were not found to be credible. He pointed out that the petitioner no longer sought to rely on the additional documents on which he had founded in the letter of 23 February 2012 (6/2 of process) in an attempt to demonstrate that the was a student. The respondent had been properly unconvinced about any of that. Although the petitioner no longer sought to rely on that part of his case related to his status as a student, that material did not disappear and remained relevant to the respondent's consideration of the whole case. That was a relevant part of the background to the case.

[9] Counsel submitted that it was not disputed in this case that the respondent under reference to Tanver Ahmed v Secretary of State for the Home Department (2002) Imm AR318, was entitled to consider the documents submitted by the petitioner "in the round" in the sense of taking into account all the information including the earlier conclusions about the credibility of the petitioner. Counsel referred to the detailed consideration given to the two said documents, namely the notice and summons in paragraphs 40 - 44 of 6/1 of process. He submitted that the respondent was well entitled to reach the conclusion which he did and that there was no error or irrationality about the reasoning. The petitioner had failed to set out any relevant foundation in his submissions which would justify judicial review.

[10] In conclusion, counsel for the respondent referred to R (on the application of Naseer) v Secretary of State for the Home Department (2006) EWHC 1671 (admin) paragraph 31 in which Mr Justice Collins stated:-

"In all the circumstances, this is a case in which, in my view, the Secretary of State was fully entitled to say to himself: 'I have had no proper explanation of how these documents came into existence. I note how useful they suddenly are, produced at this late stage. ... In all the circumstances, I take the view that I am entitled to reject the genuineness of these documents and to take the view that there is no real prospect of success.'"

Counsel submitted that in the present case it could not be argued that the documents were even prima facie genuine. The criticism which the respondent made of the documents and the approach taken was fully justified.

Discussion
[11] It became apparent during submissions that the issues in this case were narrowly focused. The only two documents now relied upon by the respondent are the notice and summons which are part of 6/2 of process. A cursory examination of these documents indicates that they are unusual in that the original documents are not produced. In the notice there is a box which narrates: "Officer delivered the warrant: signed...". In the summons there is a box which narrates: name and surname of the person issuing the summons: position; signature; and also a signed and stamped entry. These parts of the documents which are material and relevant are blank in the documents produced. The documents are subscribed as being accurately translated from Farsi to English. I consider that these documents are not original documents.

[12] The date given on each of the two documents is 02/12/10. That date is of some significance bearing in mind the criticisms which are made by the respondent when considering the documents in 6/1 of process. The criticisms of the respondent appear to me entirely justified. It should be noted that the letter on behalf of the petitioner dated 23 February 2012 relates to the issue of whether the petitioner was a student at the relevant time. The only reference in said letter to the letter of warning and summons is a reference to the translation documents appended to the letter. There is no explanation given on behalf of the petitioner about these translations. It is therefore entirely unexplained why these documents were not made available earlier, from where these documents came and what happened to the originals.

[13] I have no hesitation in concluding that the decision maker applied the correct approach in law and was entitled, under reference to Tanver Ahmed, to look at the matter in the round. In my opinion the three reasons relied on by the petitioner do not survive serious scrutiny for the reasons put forward on behalf of the respondent. I am unable to identify any basis in the submissions on behalf of the petitioner which would justify a grant of judicial review.

[14] For these reasons, I uphold the first plea in law of the respondent, repel the plea in law of the petitioner and refuse the petition.