DP (Israel) v Secretary of State for the Home Department

LORD JUSTICE RICHARDS: The applicant, Mr P, is an Israeli citizen who seeks asylum in this country. His background is a little complicated. In brief, he is an ethnic Armenian who was born in Georgia and migrated to Israel in 1991. His mother is a Muslim. He is an orthodox Christian. He gained Israeli citizenship because his father’s grandmother was Jewish. He married a Jewish wife.

The account he gave in support of his asylum claim was that the Israeli authorities had persecuted him because he was protesting against the war and the killing of innocent people, and because the authorities learned about his and his mother’s religions.

He referred in particular to two incidents. One was on 24 December 2000, when he said he had joined a small demonstration by Arab Christians who were marching to plant a Christmas tree. The police arrived and arrested him. While he was in police custody his clothes were torn and when the police saw his crucifix they beat him. During his detention he was denied access to legal representation. He was released after a month but warned that he would be punished if he joined in such demonstrations again, and that his details were on the police computer. The second incident was on 14 June 2002, after he had been displaying anti-war material and expressing anti-war views. He said he was arrested for being a traitor of Israel and supporter of the Palestinians. He was told he would be put on trial. He was released after two weeks on bail. A payment of $10,000 was made. The day after his release, men in a car, which he thought was a military car, attacked his office with guns and threw a smoke bomb into his home. That made him decide to leave Israel. He went to his wife’s relatives in Tel Aviv and left the country, without difficulty, on 7 July on a plane to the United Kingdom.

His claim to asylum in this country was refused by the Secretary of State in September 2002. Since then his appeal has been the subject of three adverse decisions, the first two of which were quashed on appeal, leading to fresh determinations. The most recent determination is that of an Immigration Judge, Mr Saffer, in March 2006. It was a fresh determination, after hearing evidence from the applicant and witnesses called on his behalf. The judge found that the applicant’s entire account had been fabricated and that it was clear that he was not a refugee. Permission is now sought to appeal against that decision. The case came on before Auld LJ a few weeks ago. He adjourned it so that that applicant could take legal advice and seek to obtain pro bono representation. Fortunately, Mr Scannell appears today on the applicant’s behalf and has been able to give the court valuable assistance.

The approach taken by the judge in his decision was, I have to say, surprisingly robust, given the nature of the issues raised and that fact that, as this was a third attempt to achieve a soundly-based decision, one would have expected particular care to be taken in relation to it. I pass over the judge’s reasons for finding that the December 2000 incident was not likely to have happened, though issues are raised in relation to the conclusion that he reached with regard to that. As to the June 2002 incident, the judge held that the applicant’s account was far-fetched and not reasonably likely, and said that there had been a failure to provide any persuasive evidence to explain why the authorities would want to take such extreme measures against the applicant. That is pretty much the totality of the reasoning put forward.

Mr Scannel criticises that reasoning as inadequate. He says that it is not self-evidently far-fetched that a person perceived to be pro-Palestinian and, through his Muslim mother, pro-Arab, might be of adverse interest to the authorities. He submits that consideration of the claim put forward in the circumstances does require considerable care and that the decision does not reveal a sufficiently careful evaluation of the evidence by the judge. Mr Scannell points out that the judge had earlier accepted that photographs submitted in evidence did show bullet holes. The judge did not grapple with the implications of that when dismissing the applicant’s account of the June 2002 incident. He did not state, for example, whether, whilst accepting that the photographs showed bullet holes, he was not satisfied that they were photographs of the applicant’s office. He did not give any indication of why the photographs were not accepted as supporting this aspect of the account put forward.

Evidence in support of the account put forward was given, in addition, by the applicant’s wife’s mother and father, both of whom described what they themselves had seen of the June 2002 incident, saying, amongst other things, that they had seen signs that multiple gunshots had indeed been fired at the applicant’s office. The judge said that he could not place reliance on the word of the wife’s parents, “as there could be any number of reasons why they would lie”. He went on to say that, in particular, it was clear that the mother had lied as she said that the applicant could not return to Georgia, whereas his passport made clear that he had been there and had two separate visas in it.

On that point, it appears that the judge was in factual error, in that the visas to which he referred, and on which he based his finding, related not to the applicant but to the applicant’s daughter. So on the one specific reason given for rejecting the mother’s evidence, the judge appears to have been in error. One is left with the general point that I have already mentioned.

In addition, the judge declined to place reliance on the evidence of a friend of the applicant, who also gave evidence about the damaged caused by bullets at the applicant’s office. Again the judge said there could be any number of reasons why that witness would lie. He was not independent, having been a close friend of the applicant for many years.

Mr Scannell submits that the approach to the evidence of these three witnesses called in support of the applicant’s case was highly unsatisfactory.

There are other points in the grounds of appeal, and some of them were touched on by Mr Scannell in his oral submissions, but I do not need to cover them.

I confess that I am troubled by this case. On the one hand, the appellate proceedings have gone on far too long already, and the last thing I would wish to do is to prolong them yet further. Moreover, I have to say that the applicant’s claim strikes me as a very strange one, and I note that he has been unsuccessful now before three different decision-makers at the appellate level, as regards the substance of his claim. On the other hand, I find the reasoning of the latest such decision-maker, Mr Saffer, to be at the least very thin and arguably inadequate. The way he dealt with the evidence of the three witnesses is particularly weak, simply declining to place any weight on their evidence because of their relationship or friendship with the applicant and not condescending to any further reasoning. It is questionable whether that is a sufficiently cogent basis for rejecting supporting evidence of this kind. I think that Mr Scammel’s criticisms of the judge’s approach towards the June 2002 incident also raise an arguable case.

Accordingly, I have decided that permission must be granted. I will direct that there be a time estimate of half a day.