Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 72
P1072/13	OPINION OF LORD DOHERTY in the Petition of H Y (AP) Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department dated 17 May 2013 ________________

Petitioner: Byrne; Drummond Miller LLP

Respondents: McKendrick; Office of the Advocate General

16 April 2014

Introduction

[1] The petitioner seeks judicial review of a decision of the Secretary of State for the Home Department dated 17 May 2013 in terms of which she decided that the petitioner's representations of 15 November 2011, taken together with his previous representations, did not give rise to a fresh claim. The matter came before me for a first hearing.

[2] The petitioner is national of Iran. He claimed asylum in the UK on 1 January 2011. His claim was refused by the Secretary of State ("the respondent"). The petitioner's appeal from that decision was refused by an immigration judge on 16 March 2011. The immigration judge did not find the petitioner's account to be credible. The petitioner applied for leave to appeal against that decision and his application was refused by the First-tier Tribunal ("FTT") on 15 April 2011 and by the Upper Tribunal on 21 April 2011. He has been appeal rights exhausted since 27 July 2011. The representations of 15 November 2011were considered by the respondent and, in a decision dated 23 November 2011, she determined that they did not give rise to a fresh claim for asylum. The petitioner brought judicial review proceedings to challenge that. On 17 December 2012 the respondent conceded that she should reconsider the representations. By letter dated 17 May 2013 she determined that the representations did not give rise to a fresh claim.

The immigration judge's decision

[3] The petitioner's position before the immigration judge was that he had not been involved in politics or political protest in Iran but that his brother had. As a result men from Etelaat had come to his parents' home looking for his brother. His mother had been assaulted by one of them, and the petitioner had lost control and got involved in a scuffle with that man. The petitioner had then been hit several times. He had felt a burning sensation in his arm and in his chest above his heart. He had been handcuffed and taken away, bleeding heavily. When he awoke he was in hospital handcuffed to a bed. Men from Etelaat had tried to remove him from hospital that day but the doctor had not permitted it. The following day he had been taken to a detention centre. His father had secured his release from detention for a month after lodging a surety. He had been taken by his parents to a doctor where he had been given ointment for his wounds. His father had arranged with an agent in Tehran for him to leave the country. He had been given a Slovakian passport. The arrangements involved him going to Turkey, then Spain, then (by way of a flight from Tenerife) the UK. He feared persecution in Iran on account of his imputed political opinion due to his fight with Etelaat.

[4] The immigration judge flagged up various matters stated by the appellant during his port, screening and asylum interviews, and in his statement to the FTT. He highlighted differences between the various accounts, and difficulties he had with the account given to him.

"33. I consider that there is no substance at all to the appellant's claim and that he is in the UK as a matter of choice rather than necessity. He has travelled through Turkey and Spain where he has spent time and failed to claim asylum in either. His reasons for not doing so are not credible...

34. It is of note that the appellant states that his family and four siblings continue to live in Iran. It is not explained why or how he is said to have lost contact with them, nor what effort he has made to try to gain such contact. There is no evidence of any continuing interest in the appellant from within Iran.

35. There is no medical evidence in relation to the cause or nature of the appellant's described injuries. The hospital record that has been acquired does not specify the nature of the injuries nor the treatment received. There is no scarring report nor any further medical or expert reports into the nature or likely causation of the injuries. The appellant's own assertions that he does not know what sort of weapon was used hardly advances matters in this respect.

36. The appellant has no political profile within Iran at all. He has no political allegiance of any sort nor has he attended any political events. The authorities would or could have no interest in him specifically. There is no evidence to suggest that any other member of his family - apart from his brother - was ever targeted by or of interest to the authorities in Iran. There is no interest at all at any stage in the appellant until the event which he describes in 2010 - just before his departure from that country.

37. I place little weight on the appellant's counter-assertions with regard to his Port and Screening Interviews. Upon arrival he asserts that he had some involvement with the Green Movement and that the authorities had tried to arrest him on more than one occasion. He now resiles from that totally and has sought to produce a claim that bears no resemblance to that which was initially set out. The assertion of problems with interpretation is familiar and lacks any credibility.

38. There is little credibility in the appellant's account and (sic) is plainly manufactured in order to sustain an opportunistic claim for asylum. I do not accept that the appellant was ever arrested or detained in the manner that he has described. His inability to remember key dates is symptomatic of a claim that is fabricated and inconsistent.

39. I do not accept that his brother was ever arrested and I do not accept that the appellant was arrested. These facts have been concocted.

40. His description of having been injured to the point of near death is totally unsupported by any convincing evidence. His hospitalisation and the events surrounding him being taken into detention after such life threatening injuries are simply nonsense. The fact of him having been permitted to receive medical attention as a suspected dissident, then to be taken into detention despite the wishes of his doctor are, frankly, incredible.

41. I do not accept that the appellant was either arrested or released with conditions. I fail to see why he would have been released at all if there was the interest to pursue criminal sanctions against him. It is not clear why the authorities would wait for a month in the manner described.

42. The document said to emanate from the Iranian police in relation to his reporting is lacking in any credibility. The submitted document bears no relation to the "piece of paper" described by the appellant in his interview. It is also not explained from where the document emanated. Was it sent by his parents? If not, by whom? I fail to see how this is consistent with his claim to no further contact with his parents. It is, in addition, not specified on this document, precisely what the appellant is stated to be wanted to make a statement for. The offence is not specified. In all, I place little weight upon this document and apply the principles set out in Tanveer Ahmed to a document in the context of a claim that lacks overall credibility.

43. In the end, the appellant had no political profile in Iran. His family continue to live there and there is no evidence that they are regarded as a subversive or dissident family. He has no political involvement and is not politically involved in any way. There is no risk to the appellant upon return to Iran. I have no hesitation in dismissing the asylum claim in its entirety. It is without foundation."

The representations of 15 November 2011

[5] The representations stated:

"Our client wishes to submit further representations which confirm that he is at risk of persecution if returned to Iran due to his imputed political opinion.

These documents are the following:-

1. Medico-Legal Report from The Medical Foundation.

2. Photographs of our client at a demonstration in Iran.

Medico-Legal Report

Please find attached a Report from the Medical Foundation which confirms at paragraphs 43, 44 and also in the summary at 48 that our client has scars that are highly consistent with his story of being injured and restrained after attacking a member of his country's feared forces.

In addition, the Report notes at paragraph 46, and also in the summary at paragraph 48, that our client is suffering from post-traumatic stress disorder..."

[6] The Medical Foundation report set out the history given by the appellant to Dr Macdonald. The narration included the following paragraph:

"To ensure that this wounds had been properly treated he was taken to see a surgeon by his father. The arm wound had been stitched and was healing satisfactorily. However the chest wound, which had also been sutured, had become infected; and he was treated with antibiotics and an antiseptic ointment. Given its position, there was also concern about possible internal bleeding. His stitches were later removed by the same doctor about three weeks after the incident."

Dr Macdonald noted symptoms of psychological disturbance and mental illness the appellant reported to him.

[7] On examination of the appellant Dr Macdonald noted inter alia the following scars:

"Scar B: 2.5 cm linear scar traversed by four rather crude suture marks with a marked keloid reaction, situated on the anterior aspect of the right upper arm just below the shoulder...

Scar F: 3.0 cm rather irregular scar with suture marks and a fairly vigorous keloid reaction of the left anterior chest. This scar was irregular and varied in width from 1-2 mm at its ends to 4-5 mm in the middle."

Dr Macdonald went on to opine:

"43. Mr Y described Scar B as the result of one of the two wounds he suffered during the scuffle that took place when he was arrested... (T)he scar has the characteristics of a cleanly incised wound repaired by rather crude stitching... Although Mr Y did not see the weapon that inflicted it, its site is highly consistent with his story of grabbing of the security policeman by the throat. The wound could very easily have been inflicted with a knife or dagger by someone trying to defend himself from a frontal assault at close quarters.

44. Scar F probably resulted from another wound inflicted in the same way and with the same weapon as Scar B. The wound is more irregular in appearance and this is highly consistent with his account that this wound became infected... This wound is much more serious and potentially life threatening than the one to the arm. In the arm damage was likely to be confined to the muscles, or, if unlucky, to blood vessels or nerves. The chest wound, depending on depth of penetration, is likely to damage the lung, major blood vessels or even the heart. It is this wound that is likely to have caused the major blood loss that Mr Y suffered. The wound does not seem to have been properly surgically explored to determine and repair the damage done, nor are there any scars to suggest that it was necessary to insert a drain into the chest to reinflate a punctured lung or deal with blood accumulating inside his chest. Mr Y is fortunate to have survived this wound...

46. With regard to Mr Y's mental health, the symptoms outlined above fulfil the diagnostic criteria for Post Traumatic Stress Disorder (PTSD) as defined in the Diagnostic and Statistical Manual, 4^th Edition (DSM-IV) of the American Psychiatric Association, with the additional features of significant depression. As explained above, cognitive dysfunction and memory impairment are common features of this well recognised mental condition following exposure to life threatening trauma, and therefore it is hardly surprising that there should be discrepancies in his SEF interview with Border Agency officials. I draw attention to Dr Juliet Cohen's article "Errors of Recall and Credibility: Can Omissions and Discrepancies in Successive Statements Really Be Said to Undermine Credibility of Testimony?"

47. Any inaccuracies are also likely to be compounded owing to the fact that the interview was necessarily conducted through an interpreter and that dates are likely to be confused as the client uses the Iranian rather than the Gregorian calendar.

SUMMARY

48. From my examination of Mr Y I have no doubt that he has been exposed to trauma of such severity as to lead to the development of PTSD. In addition he bears scars that are highly consistent with his story of being injured and restrained after attacking a member of his country's security forces whom he had witnessed assaulting his mother. I have no reason to doubt his truthfulness. His body bears numerous other scars from a totally innocent cause that he could easily have used to embellish his story should he have so desired."

The decision letter

[7] At paragraph 18 of her decision letter the Secretary of State highlighted the previous adverse credibility findings. In relation to the medical report she observed:

"24. Although the doctor states that the scars your client has are highly consistent with his story of being injured and restrained by the Iranian security, Dr MacDonald's findings cannot confirm these injuries occurred in the circumstances described by your client or that it was in fact a member of the Iranian security who inflicted the injuries.

26. ... although your client has submitted this new medical report, there is still no evidence to support his assertions of how he attained those injuries. This report as the previous evidence submitted does not provide any evidence as to the cause of your client's injuries.

...

31. Although your client has sustained injuries and scarring, the circumstances behind these injuries cannot be confirmed. As such the level of consistency of the scarring does not establish a reasonable prospect of success when taking the evidence in the round which includes the previous credibility findings and the material previously considered. It is not considered that there is a realistic prospect of a new Immigration Judge, in light of these findings and applying anxious scrutiny, coming to a different conclusion."

In relation to PTSD she noted:

"37. It may be accepted that your client has suffered from PTSD, which you imply account for the inconsistencies in his account when it comes to his ever changing dates when recalling when events that he states occurred. However, Immigration Judge Lucas found in his Appeal Determination and the Secretary of State in her Reasons for Refusal letter that your client's claim was inconsistent and not credible in many areas and not just when recalling dates of events.

38. Your client's claims have never been consistent. The inconsistencies, not including errors he claims made in dates, range from stating he has never been arrested, charged or convicted and also stating he was arrested and detained. He has claimed not to have any political involvement and in the next instances stated he was active for the 'green movement' as well as advising he had never attended any political demonstrations and then stating police had been looking for him because he had attended a Green Movement demonstration in Iran.

39. Immigration Judge Lucas found your client's entire claim to be wholly fabricated and empty of any substance at all. The Immigration Judge made reference, as seen above at paragraphs 17 and 18, to your client's claim as a whole and not just the inconsistencies in dates he provided.

40. It is also noted that it was previously suggested that your client had only provided alternative accounts of his initial claims in an attempt to mitigate a major inconsistency in his chronology of events and it is now regarded that since the reasons given for the inconsistencies originally were not accepted you have sought to provide a further alternative reason at this late stage for you client's inconsistencies.

41. It is therefore not accepted that taken in the round, the fact that your client has been diagnosed with PTSD would have impacted his credibility on all levels and as such, there were many other factors involved in assessing your client's credibility to determine whether his claim was accepted."

In respect of the photographs the decision letter found:

"59. It is noted that your client had initially claimed, on arrival in the UK, that he had attended a demonstration (Screening Interview Qu4.2). However, during his asylum interview, he then claimed he had never attended any demonstrations and when this inconsistency was put to him he denied he had ever said he had attended a demonstration (Asylum Interview Record, Qu97-98). He maintained this position during his appeal hearing. This contradicts your client now producing photographs which he claims show him attending a demonstration in Iran.

60. Whilst we acknowledge and have taken into account the effects trauma can have on recall of victims of PTSD, in this instance, the inconsistencies cited do not simply relate to dates or one incident amongst several or of an event not cited before. They go to the very core of his claim, regarding the cause of the events which brought him to the authorities attention. As stated above, his attendance at demonstrations was queried and denied by your client on not one but two occasions (the later occasion being when he had legal representation present). At no time did your client cite that he could not recall or had difficulty recalling, which was open to him. He was emphatic in his denial of being involved in such events...

62. The production of these photographs is considered to be a serious inconsistency in the claim of your client and it is considered that applying the rule of anxious scrutiny, these matters should be given weight...

64. In considering your client's production of these photographs at this time, it is acknowledged that they are inconsistent with the information noted above, and that your client had ample opportunity to raise these matters. This new information could have been raised during the appeal hearing of14/03/2011 or when permission to appeal the Immigration Judge's decision was sought.

65. As such, it is noted that your client's claim to be a genuine asylum seeker in need of international protection is considered to be fundamentally undermined by his actions."

The petition

[8] The attack in the petition was restricted to the respondent's treatment of Dr Macdonald's report:

"11. That the decision letter at paragraph 24 ... discounts the medical evidence because, finding the petitioner's injuries and scarring to be 'highly consistent' with torture cannot 'confirm [sic]' how the injuries were obtained. The decision maker erred in law in looking for certainty; that approach is inconsistent with the standard of proof or anxious scrutiny...

12. That the approach of the Secretary of State is to exclude material on account of the weighting she predicts it would be afforded by an Immigration Judge, that lacks anxious scrutiny (particularly in the face of expert evidence of this nature) ...

13. That the decision maker has failed to take account of the lacuna of evidence on this issue before the tribunal which led them to identify as a part of its reasoning the lack of objective evidence supporting the claim to have suffered serious injury. Now the evidence is that the petitioner was lucky to have survived his injuries whereas before the Tribunal thought that claim too far fetched.

14. That at paragraph 26 the decision states that 'there is still no evidence to support his assertions of how he attained these injuries.' That statement is plainly wrong, the Medical Foundation's report by Dr John MacDonald is evidence that supports his assertions of how he attained these injuries, it is difficult to conceive of what other evidence might be obtained and is contemplated by the respondent. The contention that it is not evidence is wrong, what weight an immigration judge would give to it is debatable but it cannot be said that no immigration judge would give it any weight and what weight it would be given is a matter for the immigration judge.

15. That the decision states at 29 'it is not accepted that in his report he [Dr MacDonald] has considered the evidence initially provided to him that is inclusive of the appeal determination'; that is irrational. Dr Macdonald lists the documents he has 'read' at the first page of his report and that includes 'determination and reasons 16/03/2011'. The decision lacks anxious scrutiny in extending misplaced skepticism to the basis upon which the report was written.

16. That at paragraph 31 the decision states 'as such the level of consistency of the scarring does nor establish a reasonable [sic] prospect of success, having reasonable prospects is to have greater prospects than having simply more than fanciful prospects; reasonable prospects of success is not the test, the decision is erroneous.'

Submissions

[9] Mr Byrne indicated at the outset that he placed no reliance on the photographs which had accompanied the representations. He focussed on Dr Macdonald's report. He submitted that the respondent's decision was unreasonable. It was evident that she had failed to apply the rule of anxious scrutiny. He relied on the grounds set out in the petition. The absence of medical evidence had played a material part in the immigration judge's reasoning (paras 35 and 40 of his decision). Dr Macdonald's report provided material evidence which tended to confirm or support the petitioner's account. It changed the whole complexion of the case. It confirmed he had been injured; that he had scarring; that the injuries were highly consistent with his account; and that the chest wound had been potentially life threatening. It also confirmed that he had PTSD and that cognitive dysfunction and memory impairment were common features of the disorder. While the respondent had made correct reference at times to the test that fell to be applied, in paragraph 31 - at a crucial part of her reasoning - she had applied the wrong test (viz a "reasonable" prospect of success rather than a "realistic" prospect). It was clear from her reasoning that she was in fact deciding the matter on the basis of her own view that she found the petitioner's account to be incredible. She had lost sight of her sifting role and the very modest hurdle which the petitioner had to overcome. Her reasoning showed a very considerable reluctance to accept that Dr Macdonald's report did assist the petitioner, when it was plain that it did. It was for an immigration judge to decide what weight to attach to it. The petitioner had more than a fanciful prospect of success before another immigration judge.

[10] In the course of his submissions Mr Byrne referred to the following authorities: WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495; FO, Petitioner 2010 SLT 1087; Dangol v Secretary of State for the Home Department 2011 S.C. 560; IM v Secretary of State for the Home Department [2010] CSOH 103; RA v Secretary of State for the Home Department [2011] CSOH 68; TR(Sri Lanka) [2008] EWCA Civ 1549; MO, Petitioner, [2010] CSOH 170, [2012] CSIH 20; R.C. v Sweden, ECtHR (41827/07) 9 March 2010; Hamden v Secretary of State for the Home Department [2006] CSIH 57; AD, Petitioner [2012] CSOH 140.

[11] Mr McKendrick submitted that the attack on the decision was not well founded. On a fair reading of the decision letter the respondent had accepted that Dr Macdonald's report showed (i) that the petitioner had sustained injuries and scarring; (ii) that two of the injuries/scars were highly consistent with the petitioner's account of how they had been sustained; and (iii) that on the basis of the account of events and symptoms given by the petitioner a diagnosis of PTSD had been made. The respondent had not dismissed that evidence. She concluded that these additional factors, taken with the other material, would not give rise to a realistic prospect of success before an immigration judge. While there was now support for the fact that the petitioner had been injured and that the injuries were highly consistent with having been caused in the way he described, there was still no direct evidence from any other witness confirming the events to which the petitioner spoke. The petitioner's account depended very much on his credibility. In relation to that adverse credibility findings had been made. He had given inconsistent and contradictory accounts. Many of these could not possibly be explained as being the result of PTSD. While the absence of medical evidence supporting the petitioner had been one factor the immigration judge had taken into account it was plain from his decision that this was only one of many factors he had had regard to. The long and the short of it had been that the petitioner's account had been riddled with inconsistencies and contradictions and that it had been incredible. His credibility had been yet further undermined by the last ditch submission of the photographs. The petitioner did not challenge the respondent's conclusions in relation to PTSD and credibility, or in respect of the production of the photographs and credibility. The respondent had decided that in the circumstances there was no realistic prospect of the petitioner's account being accepted by another immigration judge. That was a conclusion she was fully entitled to reach (WM (DRC) v Secretary of State for the Home Department, supra; FO, Petitioner, supra).

Discussion

[12] Immigration Rule 353 is in the following terms:

"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

Part (ii) of the rule is the live issue in the present case. It is clear from the guidance given in FO, Petr, supra, paras 22-23; Dangol v Secretary of State for the Home Department, supra, para 7; and WM (DRC) v Secretary of State for the Home Department, supra, paras 6, 8, 10 and 11 that the decision of the respondent that part (ii) is not satisfied is capable of being impugned before the court only on Wednesbury grounds, applying the rule of anxious scrutiny.

[13] I confess that my initial impression was that the petitioner's challenge was not without some substance. However, having had time to reflect and to consider the decision letter more carefully, I am not persuaded that there is a good basis for impugning the respondent's decision. In the result I am in very substantial agreement with Mr McKendrick's submissions.

[14] In the first place, I am satisfied that the respondent identified and applied the correct test (WM (DRC) v Secretary of State for the Home Department, supra, para 11). I do not accept that her reference to "reasonable" prospects in paragraph 31 of the letter indicates otherwise. She used the correct formulation at several places in the decision, one of which was in the very next sentence.

[15] The decision letter could undoubtedly have been better expressed, but I am not persuaded that the respondent rejected or discounted Dr Macdonald's examination findings or his medical opinion. Reading the letter fairly, the respondent accepted the evidence of the scarring/injuries Dr Macdonald described, and she accepted that they were highly consistent with the petitioner's account of how they had been sustained. She also accepted that the report provided a basis for maintaining that the petitioner suffered from PTSD. Any such diagnosis depended on the truth of the information given by the petitioner to Dr Macdonald.

[16] The respondent was presented with representations containing two pieces of new material. One, the report, was of some assistance to the petitioner. The other, the contention the photographs submitted showed the petitioner at a demonstration in Iran, caused further damage to his credibility.

[17] On my reading of the decision letter the bottom line for the respondent was that these additional factors, taken with the other material, did not give rise to a realistic prospect of success before another immigration judge. The medical evidence addressed a gap in the evidence which had been before the immigration judge, but many further difficulties remained. Acceptance of the petitioner's account depended on him being found to be credible by another immigration judge. The respondent concluded that there were manifold, and serious, contradictions and inconsistencies in the various accounts the petitioner had given: and that in the whole circumstances, even having regard to such assistance as the medical report could provide, the modest threshold of a realistic prospect of success had not been met. In my opinion that was a conclusion which the respondent was fully entitled to reach on the material before her, applying the rule of anxious scrutiny. I am not persuaded that her decision can be said to be Wednesbury unreasonable, or that it contained any material error of law. In my view her decision was lawful.

Disposal

[18] I shall repel the petitioner's plea-in-law, sustain the respondent's third plea-in-law, and dismiss the petition. I shall reserve meantime all questions of expenses.