Birgani v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE CARNWATH: This is an application for permission to appeal against the refusal by the Immigration Appeal Tribunal for permission to appeal from a decision of the adjudicator. The applicant is an Iranian. He claimed asylum in this country because of his fear of persecution for his political views.In particular he claimed that he had been arrested when he was putting political slogans on a wall, and was subjected to 15 days of torture, and that he was further persecuted as a result of being denounced by his step-brother.

2. The adjudicator, on 27th August, rejected his account. He did not believe the appellant's statement. He explained in paragraph 20 of his decision why he took that view.

3. There was then an application for appeal to the Tribunal. The permission was granted on the grounds that medical evidence had been produced which had not been considered by the adjudicator, and might be relevant to the important issue of whether the torture story was accepted.

4. That medical evidence took the form of a report from a Mr Johnson, who refers to the scarring on the applicant's foot. He says that this was attributed by the applicant to "His assailant applying a rod-like piece of metal to his skin for varying periods of time". The doctor found a number of pale and mature scars which he found to be consistent with that account. Indeed he says:

"I am unable to propose any accidental mechanism of injury whereby he may have sustained such scarring".

5. The matter was then considered by the IAT, and they gave their decision on 26th November 2004. The appellant was represented by counsel, Mr Rhys-Davies. They took the view that the medical evidence was not properly admissible, because it was evidence which could have been made available to the adjudicator. They referred to a decision of the Court of Appeal in E and R [2004] EWCA Civ 49, in which this court dealt with the circumstances in which new evidence could be considered on an appeal to the IAT.

6. In my view, they correctly applied the principles. Unfortunately, the law is that an applicant must bring his case before the adjudicator, which is where he has an opportunity to make his case on facts. Hhe failed to do so.

7. However, the Tribunal, having reached that view, then considered the evidence. They considered that it did not really assist because, as they said, it raised as many questions as it answered, particularly because it appeared to be inconsistent with the account that had been given by the applicant previously. The tribunal referred both to the statement where he said:

"They tied me to a chair and threatened me with a welding torch if I refused to answer".

and then also the interview, where there was a reference to flames being used to burn his skin. The tribunal thought those matters suggested there was inconsistency which really made the medical evidence of no assistance.

8. They also dealt with a suggestion that the applicant's political activities in this country would come to the attention of the Iranian Government and lead to the risk of persecution if he returned. They said that, as far as they could tell, there was no material before the adjudicator to the effect that this activity was likely to be made known to the Iranian embassy in London, or that the identity of the appellant was likely to have been revealed.

9. They dismissed the appeal. They also dismissed the application for appeal to this court, on the grounds that the grounds of appeal were:

"... no more than a series of disagreements with the adjudicator's findings. They do not establish an arguable case that the adjudicator was wrong in law, or that the findings were not reasonably open to him".

10. Before me, the applicant has appeared in person with the assistance of a litigation friend, Mr Hassani, to whom I am grateful. He has presented his case very clearly. Yesterday he applied for an adjournment on the grounds that he had a solicitor who had told him late in the day that he could not represent him. Indeed, he has shown me that there was legal aid funding. However, I refused the application as being far too late in the day. Furthermore, I had nothing to show that the solicitor had given any indication of support for the case.

11. So I deal with the matter on the basis on which it has been put. The applicant has really made two main points, both of which he made before the Tribunal. The first is that the medical report should be admitted and should be regarded as supportive of his case; and, secondly, that his political activities in this country are likely to come to the attention of the Iranian authorities.

12. I explained to him that this court can only grant permission if there is some error of law. Unfortunately, this is a case where the adjudicator simply did not believe his story. Admittedly the lack of any medical evidence in support at that stage was one factor. But that was only one factor. The adjudicator set out, at paragraph 20, a number of factors in the applicant's case which he thought were not credible. That was a matter for the adjudicator and does not raise any issue of law.

13. Similarly, the political activities in this country, and their likely effect in coming to the attention of the Iranian authorities, raise an issue of fact, and no issue of law.

14. The one matter which does concern me is the treatment of the medical evidence. As I said, I think the IAT were quite right to say that this was evidence which should and could have been made available before the adjudicator, and therefore was not strictly admissible before them. However, the emphasis which they gave to the difference between the doctor's account and the account given in the interview notes does raise a concern in my mind.

15. The applicant rightly says that the interview notes record that there were disagreements about the interpretation by the Home Office interpreter. There is a note to that effect at the end of the form. He says that the discrepancies between what he told the doctor and what he is recorded as having told the interviewer are explicable by that problem of interpretation. Having heard him myself describe, or attempt to describe, the nature of the torture, I can see the difficulty about describing something which is outside the experience of most people, and certainly not easy to put across, I suspect, through an adequate interpreter.

16. Unfortunately, that factor is not something which gives rise to an error of law which this court can correct. Similarly, he has referred to his increased political activity in this country. Again, that is not something which suggests an error in the adjudicator's decision. All I can suggest is that if he feels there are matters which have not been properly taken into account, either in relation to the allegation of torture, or in relation to his current political activities, and the current state of affairs in Iran, that he draws those to the attention of the Secretary of State.

17. I am afraid, as far as this court is concerned, I cannot give any relief.