Shahdad, R (on the application of) v Immigration Appeal Tribunal

The claimant, Ebrahim Shahdad, is an Iranian. He arrived in the United Kingdom on 3 September 2001 and claimed asylum on 11 September 2001. The Secretary of State refused his application for asylum by a letter dated 7 November 2001. His appeal was dismissed by the Adjudicator (Mr John McCarthy) in a determination promulgated on 10 May 2002. He sought to appeal to the Immigration Appeal Tribunal: permission to appeal was refused by the Tribunal (Mr G Warr) in a determination notified on 13 June 2002. He lodged an application for permission to apply for judicial review on 13 September 2002. His application was referred by McCombe J on 25 October 2002 for an oral hearing which in the event took place before Sullivan J on 15 November 2002. Sullivan J granted permission. The matter came on for hearing before me on 27 March 2003. The claimant was represented by Ms Tabitha Barran and the Secretary of State by Mr Daniel Beard. At the end of the hearing I reserved both my decision and my judgment. I now (2 April 2003) hand down my judgment giving my reasons why, as I have concluded, this application for judicial review fails and must accordingly be dismissed.

The claimant’s case was summarised by the Adjudicator in paragraphs 9-11 and 14-15 of his determination. Put shortly there were two points: the claimant’s unorthodox religious views had antagonised his religious teacher, who was a member of the Sepah, a kind of internal security force, and thus in a position to harm him; and his membership of the Basij had exposed him to risk after he had denounced the hypocrisy of his colleagues in that organisation. It is important to appreciate that the claimant did not assert that he had in fact ever suffered any harm at the hands of either the Sepah or the Basij, apart from what he alleged was an unsuccessful attempt by the Basij to ‘frame’ him. His case was that he had a well-founded fear of persecution because of his religious and political beliefs, being known to the authorities as someone who held opposing views.

The Adjudicator analysed very carefully in paragraphs 25-31 of his determination the claimant’s case in relation to his alleged membership of the Basij. The Adjudicator found the claimant’s account to be “unbelievable” (paragraph 28) and “fabricated” (paragraph 29). He found that the claimant “had never had any involvement with the Basij” (paragraphs 29 and 31).

The Adjudicator considered in paragraphs 22-23 of his determination the claimant’s case in relation to his religious teacher. He found that the claimant’s religious views although in a minority were not heretical (paragraph 22). He continued:

Referring to the religious teacher the Adjudicator said (paragraph 23):

In paragraph 31 of his determination the Adjudicator said this:

The Adjudicator, in my judgment, was fully entitled to arrive at his findings in relation to the claimant’s alleged membership of the Basij. He heard oral evidence from the claimant. It was for the Adjudicator to decide in the light of all the evidence, all the other material, and all the surrounding circumstances, whether or not he believed the claimant. The fact is that he did not. I can detect no error in reasoning or error of principle in his approach. It is impossible to say that his findings were against the weight of the evidence. The Adjudicator’s decision on this point is, in my judgment, unassailable.

In relation to the risk posed to the claimant either by reason of his minority religious views and/or at the hands of his religious teacher the task for the Adjudicator was essentially one of judicial evaluation in the light of the facts as he had found them. Again I can detect no error in reasoning or error of principle in the Adjudicator’s approach to this issue. His overall conclusion was, in my judgment, one that was quite plainly open to him in the light of his various findings of primary fact. Again, in my judgment, the Adjudicator’s decision on this point is unassailable.

In all the circumstances I find it entirely unsurprising that the Tribunal refused the claimant permission to appeal. I can detect no error of law, no error in reasoning and no error of principle in the Tribunal’s decision.

How then does Ms Barran put the claimant’s case?

The claimant had adduced before the Adjudicator a report dated 27 April 2002 from the well-known expert in such matters, Mr E G H Joffe. The Adjudicator referred to that report in paragraphs 9 and 22 of his determination. In the grounds in support of his claim attached to his Form N461 (settled by Ms Barran) the claimant puts his case thus:

Elaborated by Ms Barran in her skeleton argument, what is said is that, since Mr Joffe’s report went to the heart of the claimant’s appeal, namely that he had been a member of the Basij, it should have been considered properly by the Adjudicator and adequate reasons should have been given for rejecting it. Reference is made in this context to the judgment of Forbes J in Virjon B v Special Adjudicator [2002] EWHC 1469 (Admin).

Ms Barran’s arguments, for which I am grateful, are put with admirable clarity and succinctness. Her points are short and, as it seems to me, admit of equally short answers.

There are, as will be seen, two premises upon which Ms Barran founds her argument: (i) that Mr Joffe’s report “corroborates” the claimant’s case and (ii) that the Adjudicator rejected (or may have rejected) parts of the report. In my judgment, neither premise is correct. The whole argument therefore collapses.

During the course of argument I was taken through Mr Joffe’s report in some detail. Putting the matter generally, it can be seen to consist of two parts, one relating to the background political situation in Iran and developments within that country in recent years, the other to a discussion of the claimant’s case.

The first part was consistent with the claimant’s case, in the sense that there was nothing in the report which, of itself, demonstrated either that the claimant’s case could not be true or that it was unlikely to be true. But that is as high as the point can be put on behalf of the claimant. The simple fact is that there is nothing in the report which “corroborates” the claimant’s case: nothing in the report to put in the balance as positively supportive of the claimant’s case.

The latter part of the report was, necessarily in the circumstances, based upon the claimant’s account of what had happened to him and, understandably, assumed that what the claimant said was true. The fact is, as we now know, that the Adjudicator found the whole of the claimant’s case in relation to the Basij to be untrue – “unbelievable” and “fabricated”. This part of the report was, as Mr Beard submitted, predicated on the assumption that the claimant’s story as Mr Joffe summarised it was true. It was, as Mr Beard put it, a counterfactual analysis, that is, if what the claimant says is true then the following consequences will or may result. But the claimant’s story was not true, so Mr Joffe’s observations as to what the consequences for the claimant would or might have been if his story had been true are simply beside the point.

There is, as it seems to me, no reason to think that the Adjudicator rejected any part of Mr Joffe’s report. I am quite content to assume that he did not. But there is, in my judgment, absolutely no inconsistency in the Adjudicator saying, as in effect he did, that whilst he accepted everything Mr Joffe said (save insofar as it was simply based upon what he had been told by the claimant) yet at the same time he found the claimant to be untruthful and therefore rejected his story. Indeed, as Mr Beard points out, Mr Joffe had properly been careful to remark at the beginning of his report that he could not attest to the credibility of the claimant’s story.

Ms Barran points out – correctly as it seems to me – that the Adjudicator’s analysis in paragraphs 31-32 of his determination does not address the argument that the claimant might be at risk if returned as a failed asylum seeker. But the short answer to that submission is that it was no part of the claimant’s case before the Adjudicator (see paragraphs 14-15 of his determination), nor was there anything in Mr Joffe’s report to support such a case. Mr Joffe did address the risk to the claimant on return: see paragraphs (41) and (43) of his report. But they do not assist the claimant. True it is that Mr Joffe opined that “There is little doubt that he would be arrested upon return to Iran.” But that has to be read in the context of the following passage where Mr Joffe said “It is difficult to avoid the conclusion that he will be arrested upon return on the grounds of the false accusations made against him which originally caused his departure from the country.” So Mr Joffe’s opinion on this, as on other points, is founded on a factual assumption – as to the truthfulness of the claimant’s story about having been framed by the Basij – which turns out not to be well-founded. In my judgment there is nothing in paragraphs (41) and (43) of Mr Joffe’s report, or indeed anywhere else in his report, which can be relied on to discredit the Adjudicator’s findings. Mr Joffe’s views on this, as on other matters, were contingent upon the truth of the claimant’s story. There is, as Mr Beard correctly submits, nothing in Mr Joffe’s report (or, for that matter, in any of the other material before the Adjudicator) to support the case that the claimant was at risk on his return even if his story was untrue.

Mr Beard also sought to argue that this last point was not taken by the claimant in his notice of appeal to the Tribunal and could not therefore be taken by him in this court. That may or may not be so. It is not the ground upon which I decide the point.

Accordingly, this application must be dismissed. Unless either party seeks some different form of order I shall dismiss the application with no order as to costs save an order in standard form for the detailed assessment of the claimant’s publicly funded costs.

I should explain the delay in handing down this judgment. A draft was sent to counsel in the usual way on 31 March 2003 with an indication that it was to be handed down on 2 April 2003. The same day (31 March 2003) I received a letter from the Treasury Solicitor asking me to delay handing down the judgment until counsel (both of whom at that time were unavailable) had been able to check the draft. This I agreed to do. Only on 6 May 2003 did I receive final confirmation that no-one wished to suggest any corrections to the draft.