Karbaschien v Secretary of State for the Home Department [2006] EWCA Civ 1430

Case No C5/2006/1381[2006] EWCA Civ 1430
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Thursday, 21st September 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE LAWS
Between
KARBASCHIENAppellant-v-
Between
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 8838Official Shorthand Writers to the Court)
MISS G BRUCE appeared for Appellant
J U D G M E N T

LORD JUSTICE LAWS:

[1]This is a renewed application for permission to appeal against a decision of the Asylum Immigration Tribunal of 10th May 2006, when, upon a reconsideration, they dismissed the applicant's appeal against the determination of the adjudicator, who on 3rd February 2004 in his turn had dismissed the applicant's appeal from the Secretary of State's refusal of his asylum claim on 15th August 2003. Permission to appeal to this court was refused by the AIT on 1st June 2006 and again refused by Auld LJ on consideration of the papers on 19th July 2006.[2]The applicant is an Iranian national. The nature of his claim in barest outline was summarised by the AIT as follows:
"The appellant, a citizen of Iran, arrived in the United Kingdom on 16th August 2001 with a visa valid for one month. He applied for asylum on 31st August 2001. His claim was based on a fear of persecution from the Iranian authorities because he claimed to have passed on information of a sensitive nature about the regime to representatives of the United Kingdom government in Turkey and he further claimed that he came to this country to pass on information to MI6 about proposed terrorist activities here. His application was refused by the respondent who did not accept that the appellant would be of any adverse interest to the Iranian authorities."
[3]It was, as I understand it, common ground that the applicant had served as a major in the Iranian Revolutionary Guard. I should note he did not give oral evidence before the adjudicator. The adjudicator accepted (paragraph 32, page A50 of the bundle) that the applicant had had some contact with the British Consulate and the Canadian Embassy in Turkey, but he rejected his account of a well-founded fear of persecution, holding:
"... his visits to Turkey were part of a concerted effort to gain access to the western world."
[4]In particular, the applicant had concocted a story about meetings with an Iranian intelligence agent called Tabari, who had been involved in terrorist activities and who had been deported from the United Kingdom. The asserted facts relating to Tabari, which are somewhat convoluted, might, it is true, lend material support to the applicant's asylum claim.[5]The adjudicator summarised his conclusion thus:
"In summary I find that the appellant has had contact with the British and Canadian authorities in Turkey. I accept that he previously served in the Revolutionary Guard. At the time he left Iran he was not wanted by the authorities. I find that the appellant has concocted a story about his connections with Mr Tabari and the fact that he was subject to surveillance in Turkey, Iran and latterly in the United Kingdom. I find that the fact that he has seen Mr Nourizadeh, on its own, will not render the appellant subject to arrest and interrogation should the appellant be removed to Iran. In view of my findings I find that the appellant will be able to return to Iran safely should the Secretary of State seek to remove him."
[6]The reference to Mr Nourizadeh is important. The principal grounds of appeal to this court concern the adjudicator's treatment of two pieces of evidence. One was a letter from Mr Nourizadeh and the other an expert report. Mr Nourizadeh is a notable Iranian dissident. It was part of the applicant's case that, with his father, he had visited Mr Nourizadeh in August 2001 and told him of the threat to his life. The adjudicator said:
"It is incredible that the appellant arranged an appointment with Mr Nourizadeh and told him personally of the threat against him."
But the letter from Mr Nourizadeh, which was before the adjudicator and is before me, appears to confirm that that is what happened.[7]The adjudicator's reference to Mr Nourizadeh in paragraph 39 is, moreover, arguably inconsistent with paragraph 33; and in any event the applicant says there is nothing in the adjudicator's reasoning to explain what he made of the letter, which in the circumstances must reasonably be regarded as an important piece of evidence.[8]A like point is made in relation to the expert's report. The adjudicator had read it (see paragraph 17). It may be said to confirm the nature of intelligence information provided by the applicant and its potential utility, and there are other matters which may be thought to assist the applicant. There is nothing in the adjudicator's decision to show what he made of the expert's report.[9]The AIT (see paragraphs 25 and 26) thought little of the criticisms of the adjudicator's decision based on his treatment of these two pieces of evidence. I consider, however, that the criticisms merit permission to appeal. This was an unusual case on its facts. The letter and the report were, to put it at its lowest, arguably important material in the case. The applicant, it seems to me, is entitled to argue at a full appeal that the adjudicator should have explained what he made of those pieces of evidence. Essentially there is here a reasons challenge which merits permission to appeal and I grant it.[10]There is a subsidiary ground of appeal to the effect that the facts accepted by the adjudicator should themselves have led him to conclude that the applicant entertained a well-founded fear of persecution. I am bound to say I am much less impressed with this ground, but I will not shut it out.