Mazrae v Secretary Of State For Home Department

J U D G M E N T

1. LORD JUSTICE KENNEDY: This is a renewed application by an asylum seeker for permission to appeal from a decision of the Immigration Appeal Tribunal, which, on 30 December 2003, dismissed the applicant's appeal from the decision of an adjudicator. Permission to appeal was refused on paper by Lord Justice Sedley initially on 22 March 2004. When a reconstructed argument was presented to a constitution of this court, consisting of Lord Justice Ward and Lord Justice Mummery, on 28 April 2004, in reliance upon the decision of this court in E v The Secretary of State for the Home Department and R v The Secretary of State for the Home Department [2004] EWCA Civ 49, the court considered it right to adjourn the application for permission to appeal to be heard on notice to the Secretary of State with the appeal to follow if permission be granted.

2. The applicant is an Iranian, born on 21 March 1974 so he is now 30 years of age. He arrived in the United Kingdom on 13 May 2002 hidden in a lorry. He claimed asylum on 25 May 2002. He says that he is an Arab from Arabestan, which was not part of Iran until 1925, and that people of his ethnic background are discriminated against in Iran. Furthermore he has personally come to the notice of the authorities, first, as a student, and then because of the assistance he gave to the National Movement Alliance, so that were he to be returned to Iran his life would be in danger.

3. The applicant has given an account of what he says happened to him in Iran to a number of people at different times since he arrived in England. The accounts are not entirely consistent. But in broad terms the account which has evolved is that, first, early in 1997 - and one has to transpose Iranian into Western European dates - when he was aged 22 and at university, there was a fire in a university building and he was suspected of arson. He was not then involved with any political group. He was arrested and tortured - the ill treatment included being blindfolded, kicked and hit with a stick - so at that stage he confessed to starting the fire. He was not charged, and after 25 days he signed an undertaking that his family pay the bribe and he was released. In fact, it emerged that the fire was due to a technical fault. After his release he spent two weeks in hospital. He says his injuries included a broken leg so his leg was in plaster for two months. He also had damage to his scrotum, and one of his testicles was surgically removed. He then served for 20 months in the army, after which he dabbled in politics to the extent of allowing his office to be used to produce leaflets celebrating the history and culture of his people for the National Movement Alliance. Last, on 30 April 2002, his office was raided. He was not there because he was out of town, but his partner was arrested and documents were seized. It was at that stage that he made his way to the United Kingdom.

4. On 25 May 2002, 12 days after arriving in England, he underwent a screening interview and six days later, on 31 May, he completed a statement of evidence form. He was represented by Gupta & Partners (Solicitors). On 25 March 2002, at Lunar House, Croydon, he was interviewed in Arabic with the assistance of a translator. On 12 July 2002 his claim for asylum was refused by the Secretary of State who had serious doubts as to his credibility.

5. The applicant then appealed against that decision. His appeal was heard at North Shields in April 2003, the adjudicator being Mrs Bircher. She gave her decision on 22 May 2003. She had before her records of what the applicant had said on previous occasions and she heard him give evidence orally. He also produced two documents which purported to confirm his membership of the United National Movement of Alahwaz and, secondly, a letter from a consultant urologist, Mr Holmes, which confirmed that one testicle had been removed but that his fertility was apparently unaffected. There was also placed before the adjudicator a lengthy report from Dr Macmillan on the plight of Arabs in Iran and his perception of the risks to the applicant if he were to return.

6. The adjudicator did not find the applicant to be a credible witness; she said so in her adjudication. She did not accept that he was treated as he claimed in Iran. She pointed to the various accounts he had given and rejected his explanation that omissions were due to the shortcomings of his former solicitors. She noted the limited scope of the medical evidence, and did not find the documents confirming membership of the Movement to be authentic. As to the objective evidence and the expert's report, she said that she considered them in this way:

"I have considered the objective evidence and the expert's report. However in the context of my above findings on credibility I do not accept their conclusions."

7. The applicant then sought leave to appeal to the Immigration Appeal Tribunal in a document which contained what were, in essence, two grounds of appeal. First, that the adjudicator had failed to derive the assistance which she ought to have derived from the expert's report when considering the issue of credibility, and, secondly, that as an Arab who had departed illegally from Iran the applicant would in any event be in danger if he were to be returned.

8. On 14 July 2003 the Immigration Appeal Tribunal granted permission to appeal the second only of those two grounds.

9. On 5 November 2003 the applicant was examined by Dr Browell, a part-time general practitioner who also undertakes medico-legal work. Dr Browell confirmed the absence of the right testicle and found irregular scarring on the left lower leg "which may be consistent with the beatings he described".

10. Before the Immigration Appeal Tribunal it is not clear what, if any, use was made of Dr Browell's report. The appeal was heard at Field House on 4 December 2003, and the tribunal refused to re-open the first ground of appeal. That is really the substance of Miss Naik's complaint before us today. The tribunal was not, as to the second ground of appeal, persuaded that the applicant would be at risk if returned and it therefore dismissed the appeal. It also refused leave to appeal.

11. It is fair to say that Miss Naik did not appear at any previous stage in the matter. She then drafted grounds of appeal to this court. They focus on the first ground of appeal which the Immigration Appeal Tribunal had been asked to entertain. When the matter came before Lord Justice Ward and Lord Justice Mummery this court concentrated on the report of Dr Browell. Miss Naik submitted that it was very significant because it disclosed injuries consistent with the applicant's allegations of abuse and, although Dr Browell's report was not available until long after the adjudicator had made her decision, it should have caused the Immigration Appeal Tribunal to question the adjudicator's conclusions as to credibility. In that context, she sought to take advantage at that stage of the decision in E and R , to which I have already referred, and which stated:

"66 In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."

At paragraph 91 the court summed up its conclusion, saying:

" ..... we have concluded in relation to the powers of this Court:

i) An appeal to this Court on a question of law is confined to reviewing a particular decision of the Tribunal, and does not encompass a wider power to review the subsequent conduct of the Secretary of State;

ii) Such an appeal may be made on the basis of unfairness resulting from 'misunderstanding or ignorance of an established and relevant fact' (as explained by Lord Slynn in CICB and Alconbury );

iii) The admission of new evidence on such an appeal is subject to Ladd v Marshall principles, which may be departed from in exceptional circumstances where the interests of justice require."

12. Before us this morning there has been some understandable concentration upon the structure of the adjudicator's decision. In my judgment, it could have been a great deal better. One would normally expect the adjudicator to start by setting out the chronology of the applicant's application before her, that is to say, setting out the history of the explanations which he had given at various times since arriving in the United Kingdom and pointing to any internal inconsistency. Then, having arrived at a conclusion as to what points in the account given by the applicant she considered to be of importance, one would have expected her to progress to consider whether there was any other evidence to support what the applicant was saying. In this particular case there were three categories of evidence. First, there were the letters with which she expressly dealt; secondly, there was the medical evidence which was before her from the consultant urologist to which she did refer; and, thirdly, there was the expert evidence of Dr Macmillan which was plainly capable of having some bearing on the question of credibility because Dr Macmillan was able to describe how - in his experience and as a result of his researches - those in Iran of the age group and ethnicity of this particular applicant were, on occasions, treated.

13. In the light of her consideration not only of the applicant's own accounts but also of the other evidence which was before her, the adjudicator would then have been in a position to arrive at conclusions as to credibility. As it is, it appears from the way in which she structured her report, that, having referred to the expert's report in paragraph 20 of her determination, the adjudicator immediately in paragraph 21 went on to express her conclusion as to the credibility of the then appellant and did not conduct the sort of exercise to which I have just referred.

14. One would have expected, for example, as Lord Justice Sedley pointed out in the course of argument, for her to have addressed the question which arises out of the fact that this particular applicant had an injury which he complained was due to treatment which he received in Iran and which, Dr Macmillan said, was of a kind that was often meted out to those in Iran who were in prison, that is to say, damage to such an extent that some part of their testicle had to be removed. And one would have expected the adjudicator to be saying to herself "In the light of that expert evidence, can I believe what he says about the treatment which he received?" That detail was never addressed in this particular adjudication.

15. The fact is that when the matter came before the tribunal the tribunal was able to see that the adjudicator had in fact applied her mind to the expert's report and had plainly reached a conclusion, a quite clearly expressed conclusion, as to the credibility of the applicant. The tribunal came to the conclusion that in those circumstances there was no sufficient reason to give permission to appeal to the tribunal ( sic ) in relation to the first ground of appeal before it. Surprisingly thereafter those acting on behalf of the applicant at that time did not take the proper steps to seek to re-open the first ground of appeal before the Immigration Appeal Tribunal when it actually came to hear the appeal on the second ground. It is, to my mind, not in the least surprising that in those circumstances the Immigration Appeal Tribunal was not prepared on the occasion when it heard this matter to allow the applicant to re-open the first ground of appeal. In paragraph 5 of its decision what the tribunal said was this:

"5 It seems to us that the complaint [which was being made to it] thus made represents the ground of appeal upon which permission was not granted, and which is not therefore before us. There has been no application to revive the ground even supposing that the requirement of the relevant procedural rule could be complied with. There is, however, in our view, an even stronger reason for not accepting Mr Johnson's argument because we do not, in any event, agree with it. At paragraph 24 of her determination, the Adjudicator made it clear that she had considered the expert evidence and the expert report. It was in the context of the lack of credibility of the Appellant that she felt unable to accept the conclusions of the report, that is quite different from failing to take the totality of the evidence into account before reaching a firm view on credibility."

16. Miss Naik complains that even having taken that stance at that stage, the Immigration Appeal Tribunal should have reconsidered its position when it received an application for permission to appeal from its own determinations. There is no doubt that in the grounds of appeal which were drafted on behalf of the appellant the question as to the way in which the adjudicator should have approached the evidence before her was sought to be resurrected. But the Immigration Appeal Tribunal did not, at that stage either, show any willingness to accept that that issue should be re-opened.

17. In the light of the authorities, it seems to me that it is impossible for us at this stage to say that the tribunal was even arguably wrong. Even as recently as yesterday there was an attempt to place before this court a supplementary bundle of material without any apparent explanation as to why, at this stage, we should be looking at such material. That is not the way in which this kind of litigation should be conducted. It is really beyond argument that if someone in the position of this asylum seeker is going to make use of the procedures which are available to him his case must be presented in full - and, so far as possible, at the very first opportunity - to the Secretary of State and then, if necessary, to an adjudicator. It may be that something emerges at a later stage which ought to be brought to the attention of an appellate tribunal such as the Immigration Appeal Tribunal or even this court. That is the issue which is considered in E and R . There can be no circumstances, in my judgment, in which this court can be seriously expected, in effect, to re-start the procedure and act as though it were the Secretary of State considering the matter for the first time.

18. I have come to the conclusion that, at the end of the day, although valid criticisms can be made of the way in which the adjudicator in the present case approached her task, the Immigration Appeal Tribunal was entitled to deal with the grounds of appeal as it did and because it has done so there is no reason to grant permission to appeal to this court.

19. LORD JUSTICE SEDLEY: I agree that this renewed application fails because it seeks to criticise the Immigration Appeal Tribunal for not dealing with an issue that was not open to the applicant before the Immigration Appeal Tribunal, namely the issue of the adjudicator's approach to the applicant's credibility.

20. Before us however Miss Anderson, for the Home Secretary, has begun by submitting that the adjudicator's decision on credibility was, in any event, unassailable. Although in my initial refusal of permission to appeal I described her decision, without comment, as a reasoned adverse finding, and although, as my Lord has indicated, the Immigration Appeal Tribunal in paragraph 5 of its decision evidently found no problem with it, I am bound to say that the more I have looked at it the greater my doubts about the adjudicator's reasoning have become. It is not that her reasons for disbelieving the applicant are placed in a less than ideal order - that is often the case given the pressure under which adjudicators have to work. It is that they proceed from a stated conclusion at the beginning of paragraph 21 "I do not find the Appellant to be a credible witness" to findings which fit that conclusion. One can demonstrate this quite simply: paragraph 24, which my Lord has quoted, has referred, as one would have expected it to do, to paragraph 19 of Dr Macmillan's expert report. It would have noted that the genital mutilation of male detainees appears to be a recurrent phenomenon in Iran. In such a light, paragraph 22 could not properly have dismissed the consultant's report of the loss of one of the applicant's testes, as it did, on the ground that the report did not confirm how the loss had come about. That was what the applicant's own evidence and Dr Macmillan's evidence sought to do, and all three should have been considered and evaluated together rather than, as has happened, being dismissed in isolation from one another.

21. Beyond this, the adjudicator's confident assertion that "if the appellant's account were genuine one would have expected the appellant to display other physical and psychological symptoms", seems to me inexplicably sweeping. So does her expectation that the applicant should have known why he had been arrested. States like Iran do not necessarily follow the principles of Christie v Leachinsky and Article 5 of the European Convention on Human Rights. The same is true of her disbelief that the applicant, having been detained, should have been released without being monitored. Do people in a police state necessarily know that they are being monitored? None of this is to say that the applicant's application for asylum should necessarily have succeeded. It is simply to say that the adjudicator's reasons for disbelieving his entire account may be less than cogent.

22. Miss Anderson accepts that a fresh application, if made, would have to be considered by the Home Office in the light of any new evidence and argument. If this were to happen, I would hope that the doubts expressed by my Lord and myself about the reasoning applied by the adjudicator to the evidence before her will also be taken into account.

23. LORD JUSTICE NEUBERGER: I agree with my Lords for the reasons given by my Lord, Lord Justice Kennedy, that this application should be dismissed. I agree also with the concerns expressed about the adjudicator's decision as contained in my Lord's judgment and that of Lord Justice Sedley.

Order: Application refused.