Mohamed Shihab Mazrae v Secretary of State for the Home Department [2004] EWCA Civ 609

Case No C4/2004/0405[2004] EWCA Civ 609
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Wednesday, 28 April 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE WARD
LORD JUSTICE MUMMERY
Between
MOHAMED SHIHAB MAZRAEApplicant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS SONALI NAIK (instructed by Tyrer Roxburgh & Co) appeared for Applicant for THE RESPONDENT WAS NOT REPRESENTED AND DID NOT ATTEND

J U D G M E N

LORD JUSTICE WARD:

[1]This is the renewal of an application for permission to appeal against the decision of the Immigration Appeal Tribunal of 30 December of last year dismissing the applicant's appeal from the decision of the Adjudicator, made in May of last year, upholding the Secretary of State's decision that the applicant failed to establish that he was entitled to be treated as an asylum seeker.[2]The hearing before the Adjudicator established that the applicant, a 30 year-old man from Iran, arrived in this country in 2002. Before the Adjudicator was an amount of objective evidence and an expert's report prepared by a Dr Macmillan, to which reference is made in paragraph 20 of that decision and which I need not trouble to read in full. The gist of the Adjudicator's decision is really contained in the next two paragraphs. She did not find the appellant to be a credible witness and she did not accept that he was subjected to the treatment which he claimed to have suffered whilst in Iran. She rejected his evidence of his membership of a political movement in Iran.[3]Pertinently, she found in paragraph 22 the following:
"The appellant claims that he was severely tortured during his period of detention. I find that the consultant's letter does not confirm how the appellant sustained the loss of a testicle. It merely confirms that a prosthesis is being considered. The appellant has not submitted a medical report. He appears to have sustained no other injuries despite his claim that he was severely tortured during his 25 days in detention. If the appellant's account were genuine, one would have expected the appellant to display other physical and psychological symptoms."
Consequently, she came to the conclusion that the appellant was not of genuine interest to the authorities. He would have no reason to fear if he were returned.[4]There was an application for permission to appeal against that decision, and ground 3 submitted, in effect, and I simply summarise it, that the Adjudicator failed to weigh properly the expert's report.[5]Permission was given but on a limited basis, the Tribunal considering that:
"The Adjudicator was entitled to find the claimant lacking in credibility concerning his alleged political activities, but considers that the grounds set out an arguable challenge to her conclusions on the issue of his Arab ethnicity and the fact that he left Iran illegally."
[6]Thus the matter went to the Immigration Appeal Tribunal on that limited basis. Nonetheless, as appears from paragraph 4 of that decision, Mr Johnson, who then appeared for the applicant, renewed the argument that the Adjudicator was wrong in law to have dealt with the matter without proper reference to the expert's report before reaching an assessment of credibility. The Appeal Tribunal then held in paragraph 5:
"It seems to us that the complaint 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 procedure rule could be complied with."
They then went on to disagree with the argument on its merits and I need not take time to read that in full.[7]The appeal before us was probably originally mounted with a view to endeavouring to persuade this court to look at the matter in that broad way with particular reference to the expert's report. I think that argument is beset with huge difficulties. There was no proper application, it seems, before the Immigration Appeal Tribunal inviting them to amend the grounds of appeal, which is perfectly possible, but subject to rule 20 of the rules which would require it to be established that, because of special circumstances, it would be unjust not to allow the variation. All of this seems to me to be an attack on an exercise of discretion not giving rise to any point of law for the consideration of this court; it not being alleged, as I understand it, that the decision was perverse as opposed to being outside the generous ambit within which reasonable disagreement is possible. On the face it, therefore, this appeal seemed doomed to fail for reasons eloquently and succinctly stated by Sedley LJ when he refused permission on paper, and again, in the interests of time, I do not read those reasons, but bear them very much in mind and express the preliminary view that they struck me as sound.[8]Reason 4, mentioned by Sedley LJ, was this:
"I remained troubled by the evidence that A had been held and beaten in a manner seemingly designed to cause genital mutilation even in the absence of more than formal medical evidence. But there is a reasoned adverse finding about this which the present application cannot undo."
[9]Ms Sonali Naik, who appears today on the applicant's behalf, having taken that observation by Sedley LJ to heart, reconstructs the argument before this court and I hope I do justice to it by summarising it in this way. Her submission is that there was evidence before the Immigration Appeal Tribunal which, even if it was not expressly drawn to the Tribunal's attention by counsel or solicitor who represented the applicant there, nonetheless is hugely significant evidence. It is a report of Dr Browell. It repeats as part of the history the applicant's account that, during an interrogation some years previously, he was struck with batons, kicked with military boots, repeatedly punched and beaten by four to five men at a time. On one occasion his lower right leg was severely beaten with a baton -- beaten until he was unconscious. The history recounts that, having been able to be released from that interrogation because of a bribe, he was taken to hospital where his right leg was x-rayed and found to have been fractured and he was in plaster for two months. He was found to have suffered severe injuries to his right testicle, which was removed surgically by the hospital that same day. The consequences were that he was scarred and still suffered discomfort in the right leg. He suffered obviously from the loss of his testicle, but he suffered psychological harm as a consequence of that surgical intervention. The opinion in that report is that the account he gave would probably have led to the fracture for which the scarring "may be consistent with the beatings he described". As for the removal of the testicle, the opinion was:
"Whilst it is impossible to verify the reason for removal of the testicle, it is certainly possible that this operation was required following physical trauma to the scrotum and could be consistent with his description."
[10]Thus the submission is that, had that evidence been properly considered by the Adjudicator or by the Immigration Appeal Tribunal, who had a power to admit all material facts to it, it would have seriously undermined the credibility finding made by the Adjudicator; would have supported the assertion that this was a man who had been brutally tortured by the Iranian authorities, and that that, coupled with his ethnicity and the fact that he had left illegally, would strongly support his claim that he was both a refugee and that he could expect to be tortured were he returned.[11]The only way in which this argument can succeed is by reliance on a recent decision of this court in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49 where, summarising the position in paragraph 92(iii), Carnwath LJ, giving the judgment of the court, said this:
"To justify reopening the case, the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked [I omit reference to Ladd v Marshall which may present some difficulty to the applicant]."
Is this a case where there is a risk of serious injustice? I understand the argument advanced; I am certainly not disposed at the moment to reject it, nor am I at the moment totally persuaded by it, but I am sufficiently troubled by it, as was Sedley LJ, to conclude that the right disposal of this application is to adjourn it to be heard on notice to the Secretary of State so that he may have the opportunity to put argument before the court who actually grants permission, if that is the appropriate course to adopt. If permission is granted, the appeal should follow on immediately. So I would adjourn on notice to the Secretary of State with the appeal to follow. I would direct that it be listed before three Lord Justices with a duration of half a day.

LORD JUSTICE MUMMERY: I agree.

Order

Application adjourned on notice to the Secretary of State with the appeal to follow if permission is granted. Application/appeal To be listed before three Lord Justices with a duration of half a day.