BR (Iraq) v Secretary of State for the Home Departement [2006] EWCA Civ 1766

Case No C5/2006/1835[2006] EWCA Civ 1766
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. HX/07334/2004]
Venue Royal Courts of JusticeDate Tuesday, 21 st November 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
Between
BR (Iraq)Appellant- v -
Between
SECRETARY OF STATE FOR THE HOME DEPARTEMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MS N BRAGANZA (instructed by Messrs Fisher Jones Greenwood) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]The applicant is a citizen of Iraq. He is aged 36. He arrived in the United Kingdom on 6 February 2001 and claimed asylum on arrival. He claims to be of Kurdish origin and to have been pressured into joining the Ba’ath Party in 1989. He appealed against the refusal of asylum to the Secretary of State, and this was rejected on 8 July 2004. He appealed to the Asylum and Immigration Tribunal who, by consent, directed a re-determination de novo. This took place on 21 June 2006, the determination being given on 5 July. Again, his asylum and human rights claims failed. He sought leave to appeal to this court and that application was refused by the tribunal on 2 August 2006 and his application to the single Lord Justice was refused by Carnwath LJ on the 2 October 2006.[2]The application is now renewed to an oral hearing and Ms Braganza, who has appeared today before me, advances two grounds upon which she submits permission to appeal should be granted. Her first ground is that the tribunal in rejecting the applicant on credibility failed to have regard to and refer to important documentary evidence which she submits on the face of it supported the applicant’s claim and was addressed in the expert’s report, and his view was that the documents were probably genuine. The second ground of appeal is that the tribunal did not deal with the point that the applicant is a medical practitioner and that the up-to-date objective material shows that medical practitioners generally are in a class where they will be at risk if returned to Iraq. Before dealing with each of those points, I shall refer in a little detail to the tribunal’s determination.[3]The tribunal records at paragraph 5 that:
“The [applicant] based his claim for asylum on the political opinion which the regime led by President Saddam Hussein would impute to him. The security forces had persecuted [him] and his close family members on their perception that his brother, Nazim, was opposed to the regime. The [applicant] also based his claim for asylum on that political opinion which Kurdish elements would impute to him. On account of his father’s actions in attempting to recruit Kurds to the Ba’ath Party and on account of his actions in bringing about the forcible expulsion of Kurds to the Northern part of the country, the Kurdish population of Iraq would develop a political or politicised perception of [him] and would regard [him] with hostility. At the hearing [before the tribunal] the [applicant] did not express a fear of that regime led by President Saddam Hussein. However, he certainly advanced a claim that he would be at risk of serious harm and ill-treatment from members of the Kurdish communities of Iraq if he was returned to his country.”
He had come under pressure to join the Ba’ath Party, which he did in March 1989. From 1992 he was put under increasing pressure to recruit Kurdish students at the medical college where he was studying, with a view to qualifying as a doctor into the Ba’ath Party. The applicant and his family decided under pressure in January 1999 to become Arabs. The applicant’s brother had come under pressure from the authorities. His difficulty with the authorities became worse towards the end of 1999 when he refused to spy against Kurdish activists and students at the university, and he left Iraq in fear of his life. The authorities were determined to find him and they visited his family home on many occasions looking for his brother and on two occasions they assaulted the applicant and his father.[4]On 3 January 2001 he received a telephone call from his uncle, who informed him that the security forces had raided his home and abducted his father, mother, brother and sister. In fear of his life he left Iraq for Turkey and arrived in the United Kingdom in February 2001. The court had before it two unsigned witness statements from a Nazim Ramzan. The tribunal said:
“Summarising the account which Nazim gave, he, the [applicant] and his father had been forced to join the Ba’ath party. His father had provided information to the authorities about the Kurdish parties in the north. Certainly, the [applicant’s] father gave information to the authorities about Kurds who were then deported and it was well-known in their area that the family were members of the Ba’ath Party. Ramzan said that he graduated from the Fedaeen Saddam in 1998. In 1999 he was told by a Ba’ath Party representative that as he had not completed his military training he would be required to spy on other Kurdish students. A few days later his father told him he had received a letter from the General Security Office in which an intention to arrest him, Ramzan, had been expressed. Ramzan resolved to leave his country believing it would not be safe for him to seek refuge in Kurdistan. [He] left Iraq pursuant to arrangements made by an agent and arrived in the United Kingdom in February 2000…he had been granted exceptional leave to remain … on the 1 June 2000.”
He expressed the belief that the applicant would be at serious risk of ill treatment if returned to Iraq, and he expressed the belief that the applicant would be targeted in revenge for the family’s connection with the Ba’ath Party.[5]The applicant gave evidence and said that Ramzan had helped him to a very considerable extent after his arrival in the United Kingdom and that he had supported him very considerably. Ramzan, likewise, gave evidence and the tribunal considered a report from Dr Fatah, an expert, dated 16 June 2004. The tribunal said at paragraph 18 that it concluded that the applicant and Ramzan were not credible witnesses and moreover that they did not give a credible account of events, and they reached that conclusion notwithstanding the support which the objective and expert evidence rendered to their claims. The tribunal said at paragraph 22:
“As the hearing progressed it became plain that the [applicant] had given seriously inconsistent evidence insofar as his claim to have been-ill treated by the Iraqi security forces were concerned.”
A little later:
“That Ramzan was not a credible witness [and had]…not give[n] a credible account of events.”
[6]At paragraph 26 the tribunal said:
“In arriving at such findings of fact and concluding that the appellant’s credibility was severely damaged we have indeed borne in mind Mr Bazini’s submission that the SEF should not be taken into account as a source of evidence from which to draw when considering the issue of credibility. We have certainly borne in mind that the appellant did not refer to or adopt the SEF when giving evidence. That was certainly the appellant’s right.”
Then dealing with Dr Fatah’s report:
“… Dr Fatah’s report and his suggestion that the appellant was at risk from Kurdish elements was predicated upon his acceptance of the appellant’s evidence which had been furnished to him in the first instance in order that he might prepare that report which was presented to the Adjudicator.”
A little later:
“We have not accepted the appellant’s claims of fact. We are not prepared to regard Dr Fatah’s conclusions as generating a claim that the appellant is a person at risk from any element in Iraq, a proposition which an assessment of the evidence as a whole tended to refute.”
They concluded:
“… that the appellant and Nazim Ramzan were not credible witnesses and that neither gave a credible account of events. Indeed, we are driven to conclude that the appellant’s claim for asylum and the facts on which that claim were based were no more than a fabrication devised in order to secure his entry into the United Kingdom and in time to prolong his stay.”
[7]Now the first point taken on the appeal is that the tribunal did not refer to documentary evidence and that evidence was specifically identified as a military certificate and, perhaps more particularly, an arrest warrant. It is true that the tribunal did not make specific references to those documents, and it is submitted by Ms Braganza that had those documents been properly taken into account then it is a possibility that that would have tipped the scales as far as the tribunal’s conclusions on the applicant’s credibility are concerned. Dr Fatah certainly did refer to the documents and the tribunal plainly had Dr Fatah’s evidence very clearly in mind. But as the tribunal pointed out, his evidence was predicated upon his acceptance of the applicant’s evidence.[8]In my judgment, the conclusion of the tribunal was very firmly that they did not believe the applicant or his witness. The whole of his claim was rejected for very good reasons and in my judgment it was not incumbent on the tribunal to make specific reference to these documents, which plainly by inference they rejected as they were entitled to.[9]As to the second ground of appeal, Ms Braganza’s submission really comes to this: that because the applicant is a doctor, quite regardless of every other conclusion reached by the tribunal, he falls into a class of person who will be at such heightened risk if returned to Iraq that he has made out his claim under the Convention and indeed under Article 3.[10]I have been referred to the objective evidence upon which Ms Braganza specifically relies. In particular, there is a human rights report taking the position right up to 30 April, the report being dated 24 May. A passage in that report on which Ms Braganza particularly relies is the killing of professionals, including doctors and academics, is another cause for concern. At least 100 professors have been reportedly killed since 2003. It is to be noted that the reference is to professors who have been killed and there is no specific detail with regard to doctors other than that they are a cause for concern.[11]At page 190, there is a document dated March 2006 from the European Council of Refugees and Exiles headed Guidelines on the Treatment of Iraqi Asylum Seekers and Refugees in Europe. In a passage at page 193 it speaks of a heightened risk with regard to professionals. It says:
“Professionals. For example academics, teachers, journalists, artists, doctors and medical personnel due to suspected co-operation with or perceived support of the US-led Coalition Forces suspected association with the former regime, as well as for the wealth they are perceived to have.”
There is no suggestion that there will be any suspected co-operation or support on the part of the applicant for the coalition forces or with the former regime. That leaves him potentially vulnerable in relation to the wealth that he may be perceived to have. Ms Braganza says that this point was specifically taken on the applicant’s behalf before the tribunal and that it was incumbent upon the tribunal to deal specifically with it.[12]In my judgment, the objective evidence does not go so far as to show that no doctor whatever the circumstances can safely be returned to Iraq and I am unable to see any particular features that take the applicant out of the general category. I bear in mind that his evidence was rejected by the tribunal that it would place him in a category of special risk.[13]In these circumstances, it does not seem to me that either of the grounds of appeal, advanced forcibly and persuasively by Ms Braganza today, have a real prospect of success and in the absence of a real prospect of success it would be inappropriate for me to grant permission to appeal.[14]Accordingly, permission is refused.

Order

Application refused.