AA (Iran) v Secretary of State for the Home Department [2006] EWCA Civ 1027

C5/2005/2486, C5/2005/2486(y)[2006] EWCA Civ 1027
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. AS/05807/2004]
Venue Royal Courts of JusticeDate Monday, 3 rd July 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE BROOKE,
VICE PRESIDENT, COURT OF APPEAL (CIVIL DIVISION)
with
LADY JUSTICE SMITH
and
LORD JUSTICE JACOB
Between
AA (IRAN)Appellant- v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR D O’CALLAGHAN (instructed by Messrs Sultan Lloyd, 514a Coventry Road, Small Heath, Birmingham B10 0UN) appeared for Appellant.MS M DEMETRIOU (instructed by The Treasury Solicitor, London WC2B 4TS) appeared for RespondentJ U D G M E N T

LORD JUSTICE BROOKE:

This

[1]is an appeal by AA from a decision of an immigration judge on a reconsideration of his appeal on 23 September 2005 whereby she dismissed his appeal against the refusal of the Secretary of State to grant him asylum and to refuse to allow him to stay in this country on human rights grounds for the reasons set out in a letter dated 26 February 2004. An earlier decision by an adjudicator had been set aside by the Immigration Appeal Tribunal, who ordered a complete rehearing afresh.[2]AA is now 31. He is a citizen of Iran, where he lived until he came to this country in January 2004. He claimed asylum on the day following his arrival. His story was a straightforward one. He said that his father was detained in 1993 because of his involvement with the Workers’ Communist Party of Iran (“WCPI”), and that he had died in detention two years later. From at least 1996 onwards AA was living with his mother, his sister and two brothers in a house owned by his mother in a city of Iran, and that he had a job with a local company. Although he never knew any details of his father’s involvement with WCPI, in January 2001 he started distributing WCPI literature for a friend of his father, a task he undertook about once every ten days over the next three years. Because the WCPI was an illegal organisation, he had to take care to see that he was not caught.[3]He said he lost his job in about August 2002 because of his refusal to allow deductions from his pay to help the Palestinian cause. After this, he received financial help from members of his family. He also obtained work as a freelance subcontractor for companies doing work for his former employers.[4]In July 2003 he was arrested with one of his brothers when he took part in a demonstration and he was detained for 24 hours. However, he was released on bail the following day after the deeds of his mother’s shop had been deposited with the authorities as security for his release.[5]On 13 November 2003 he attended another company in the group for an interview for a new job. However, he took fright when the person interviewing him started to make telephone calls about him. He left in a hurry, and went to stay with a sister in Tehran in order to be out of the way.[6]He then heard that a friend of his, who used to distribute WCPI leaflets with him, had been arrested while distributing leaflets and had told the authorities about his involvement. The authorities raided his family’s home two days later but did not find any compromising literature there. A summons was served at his family’s house requiring him to attend the local police station, and a follow-up notice was served shortly afterwards. He decided to leave his sister’s house, and went to live with other members of his family in the north of Iran. He was in touch with his family occasionally by telephone, and after his family had been searched and questioned, and searches for him had been made at the houses of other family members, his mother and his brother-in-law produced enough money to enable him to escape from Iran, using the services of an agent. He was told by his family not to return because his life would be in danger if he did. He told the Home Office interviewer that he was sure that the authorities would kill him if he were to go back. That was the story on which he based his claim for asylum.[7]He gave oral evidence before the immigration judge, who also read his earlier statements and notes of interview. She started that part of her determination which is headed “Consideration of the evidence and findings of fact” by summarising the way he put his claim for asylum. She then stated her conclusion which was that after giving careful consideration in the round to all the evidence that was before her, she did not find that the appellant was a credible witness.[8]She then proceeded to set out her reasons for that conclusion in a carefully-structured determination.[9]She began by considering the evidence the appellant had given about his father. In a witness statement dated 24 August 2005 (“his witness statement”) he said that his father had been killed because of his activities for the WCPI and that this had had a massive effect on him and his feelings towards the governing regime. He had told her at the hearing that he had learned of his father’s death from officers of the intelligence service, and that his family took his father’s body from the prison to the city which was his birthplace.[10]The immigration judge accepted documentary evidence which recorded that his father had died of a kidney problem in June 1995. She concluded that he had probably died of natural causes. She went on to find an inconsistency between what AA had said in his witness statement about the inspiration that he had derived from his father’s activities (although he went on to say that his father kept his activities about the Party mostly to himself) and his answers in interview in which he said he was not informed about what his father had been doing and the family did not tell him about his father’s role. She believed that it was reasonably likely that if the contents of his witness statement were true he would not have waited six years before becoming involved with the WCPI. For these reasons she did not find that it was reasonably likely that his father had the political profile he claimed. She believed that his father’s death was from natural causes and not because he had been in prison.[11]Next, she considered what the appellant had said about distributing leaflets for the WCPI. He had told her that he would drop the leaflets through the fences of factories at night. She believed that if he really had been carrying out this activity every ten days over a three-year period, it was reasonably likely that he would have been seen and suspicion would have fallen on him very much earlier; and she did not believe this part of his evidence.[12]She accepted that he had been sacked from his job in August 2002, and he had produced what was equivalent to a Notice of Hearing of an Employment Tribunal to confirm what he said. She accepted that it may have been the case that he was dismissed, as he said, because he refused to let his employers take part of his salary to help the Palestinians; but it was also reasonably likely that he was sacked for a number of other possible reasons which had nothing to do with the claim for asylum.[13]Whatever the reason for his sacking, she did not believe him when he told her that he continued to work in a freelance capacity for the company which had sacked him. She believed that it was reasonably likely that that company’s security apparatus would carry out checks on him, and would not allow him to work for the company again in any capacity in view of his previous dismissal.[14]She also did not believe what he had told her about being called for an interview by the same company. He had produced a document signed by the head of security for the relevant group of companies, and the immigration judge said that she believed this man would have been only too well aware of AA’s background and would not have called him for interview. She went on to doubt the authenticity of that document, for the reasons she gave in paragraphs 32 and 33 of her determination.[15]When she considered the two letters requiring him to attend the local police station, she noted that if it was true, as he had said in his very first statement, that he had expressed his opinions to the people to whom he had applied for a job, it would have been unlikely that he would not also have spread his political views among the workforce, which was one of the matters of which complaint was made. She noted, however, that in interview he had denied that he had talked about his political opinion.[16]Because of her general unwillingness to believe what the appellant told her, the immigration judge found that the two notices he produced were of no assistance to her in determining the claim. She noted objective country evidence to the effect that it was easy to obtain what appeared to be bona fide legal and bureaucratic documents.[17]She went on to note that in his very first statement the appellant had said that he was detained for attending demonstrations, and that this had happened most recently in July 2003, whereas he asserted in interview that this was the only time he had been detained. She also considered that it was not reasonably likely that he would have been fingerprinted and documented before his release on that occasion. She believed that if this had happened he would have mentioned it either in his very first statement or in his Home Office interview; and she concluded that he had only mentioned this at a later stage to enhance his claim for asylum. Since he was arrested among many other people, she did not regard it as reasonably likely that the authorities would have had the time to document properly all the people they had arrested bearing in mind that the appellant said he was released without charge within 24 hours.[18]Since she did not believe that he had been involved with distributing WCPI leaflets she rejected his evidence about the arrest of his friend with whom he said he had been distributing them.[19]She went on to express scepticism about the documents that he had produced, given that at his Home Office interview he had referred to documents which were as yet untranslated whereas a red tag on the relevant envelope bore a date nearly a month after the interview. She described (in paragraph 46) the confused and inconsistent evidence he had given her about these documents and their envelopes which led her to doubt his credibility still further.[20]For these reasons she said that she did not find the appellant had a political profile in Iran, either through his own actions or those of his family. She therefore dismissed his asylum appeal and went on to dismiss his human rights appeal which stood or fell with his asylum appeal.[21]This was a case in which permission to appeal was granted by the Asylum and Immigration Tribunal. Seven grounds were originally put forward. Grounds 5 and 7 were not allowed to go forward, and Mr O’Callaghan has abandoned ground 3. However, he has sought our permission to put forward ground 7, and it was settled earlier in the proceedings in this court that this should be left for the court hearing the appeal to decide.[22]So far as ground 1 was concerned, this was based on the contention that in some of the paragraphs in which the immigration judge set out findings, she appeared to have inverted the burden of proof, because she failed, while concluding that what the appellant said was not reasonably likely, to consider whether it was reasonably possible. It was also said that she should have taken into account what he did say, even though she rejected it as not reasonably likely. Mr O’Callaghan has taken us through some individual paragraphs in her fairly tight reasoning in which he said that she inverted the burden of proof.[23]Although I accept that the judge’s decision might have been more carefully phrased, I consider that there is no merit in these grounds. There were a large number of different reasons why the immigration judge explained that she was not willing to believe what the appellant told her, and if she was unwilling to believe what he told her, she was not willing to take into account that it was at all likely that what he told her was true.[24]It was then said, at paragraph 43 of the determination, after she had given many reasons for rejecting as not credible what the appellant had told her, she gave an additional reason that she had not allowed the appellant to deal with at the hearing. In that paragraph she took the point that in his witness statement the appellant had referred to his mother putting up the deeds of her shop, whereas in his original statement he had said that he and his brother were bailed out of detention by his elder brother’s shop deeds. In my judgment there is very little in this point at all anyhow; I can see the force of Mr O’Callaghan’s complaint about this matter, but even if the immigration judge had not taken this point, I cannot see that it would have made any difference to the sum total of her judgment. It may well be that the mother sent her deeds along while his brother deposited them as security for the appellant’s release, but I can see no way in which that isolated point could assist the appellant.[25]Mr O’Callaghan makes a similar point in relation to a letter from the WCPI, which the appellant produced after he had been refused asylum. The letter was dated 1 April 2004, and the immigration judge said the appellant had produced no evidence of having had any further contact with the party since that date. She said that she believed he joined the party as a response to the refusal letter. I do not consider that this is a matter on which permission to appeal should be granted; it is a very trivial point and again, as I have said, the immigration judge had already given plenty of reasons for refusing to believe the appellant before she came on to the final point at the very end of her determination.[26]Complaint was then made about the documents which the appellant had produced from Iran. In paragraphs 45 to 46 of her determination, the immigration judge explained how the appellant was giving inconsistent evidence to her about the envelopes in which the documents arrived:
“45. As to the documents produced from Iran by the Appellant, I have further doubts as to the credibility of these documents from the Appellant’s evidence as to how they came to him. In his evidence he said it was in an envelope and that the tags which are in my Bundle at 21 were attached. It is not possible to make out a date for the post mark on the envelope. I note however, that the red tag has a date of 18 March 2004. The interview date was on 20 February 2004. In his interview the Appellant makes reference to documents which are as yet untranslated. It would not be possible for him to do this had the documents not been despatched until nearly a month later. 46. In addition in his evidence to me the Appellant said at first all the documents had arrived in the envelope at 21 in the Bundle. He said they were received after the interview (but this is not in accordance with what the Appellant said at interview). He then went on to say he had received them a few days before the interview but that his representative had said they did not have enough time to arrange for the translation of them. When the Appellant was asked about the two tags he said then that he had two envelopes but he did not know when the first one arrived. The Appellant’s evidence in this regard was confused and inconsistent and leads me to further doubt his credibility”
. I can see nothing in that description of the muddle into which the appellant got in explaining these documents to suggest that the immigration judge misdirected herself in law as to the correct standard of proof.[27]Finally – and this was the matter upon which Mr O’Callaghan placed most weight – he complained that the immigration judge’s approach to the documentary evidence which the appellant had produced was inconsistent. She had been willing to accept the reliability of the death certificate, and she had been willing to accept the reliability of the notice of the hearing of an employment tribunal, but she had not been willing to accept the reliability of the letter from the company about the interview which was sent to the police, among others, or the reliability of the letters requesting the appellant to attend the police station. Mr O’Callaghan was on rather stronger ground when he complained that in paragraph 34 of the determination, which referred to the two letters asking him to attend the police station, she said: “However, as I do not find the Appellant’s claim to be credible I have found these letters to be of no assistance to me in determining this claim. I have noted from the CIPU at paragraph 5.29 the objective evidence as to how easy it is to obtain legal and bureaucratic documents. Looking at the evidence in the round I have accordingly placed no weight on these letters”.[28]While the second part of that sentence might have been more happily phrased, I can see no reasonable grounds for interfering with the conclusion to which the immigration judge came. She was entitled to regard with suspicion documents of this kind, because of the objective evidence to which she referred. But she said, not only in that paragraph but also earlier, in paragraph 17, that she had given consideration in the round to all the evidence, and in my judgment, given the very large number of inconsistencies which led to her reluctance to believe the appellant’s story, she was entitled to take the view she did about these particular documents while being willing to accept on their face value the two earlier documents which were put before her.[29]I would like to compliment Mr O’Callaghan for the spirited submissions we received from him today, particularly as he was instructed in this matter only last Friday. But, for the reasons I have given, I would dismiss this appeal.

LADY JUSTICE SMITH: I agree.

LORD JUSTICE JACOB: I also agree.

Order

Appeal dismissed.

Cited in 1 later judgment