HJ (Iran) v Secretary of State for the Home Department [2006] EWCA Civ 1796

Case No C5/2006/1110[2006] EWCA Civ 1796
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. HX/04520/2002]
Venue Royal Courts of JusticeDate Tuesday, 5 th December 2006
Strand
London, WC2
B E F O R E:
SIR IGOR JUDGE
(The President of the Queen’s Bench Division)
LORD JUSTICE LAWS
LORD JUSTICE SEDLEY
Between
HJ (Iran)Appellant- v -
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(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)
MR P LEWIS (instructed by TRP Solicitors) appeared for Appellant.MR A PAYNE (instructed by Treasury Solicitor) appeared for Respondent.
J U D G M E N T

LORD JUSTICE LAWS:

[1]This is an appeal against a determination of the Asylum and Immigration Tribunal (“the AIT”) dated 28 February 2006. Permission to appeal was granted by the AIT itself on 25 April 2006. By its decision of 28 February taken on a statutory reconsideration, the AIT dismissed the appellant’s appeal brought both on asylum and human rights grounds. The proceedings have a somewhat convoluted history. The appellant is an Iranian national born on 18 April 1976. He arrived in the United Kingdom clandestinely on 9 July 2001 and claimed asylum at the port. On 21 August 2001, the Secretary of State refused his claim and refused leave to enter. His appeal, was dismissed by the adjudicator on 10 May 2002. The Immigration Appeal Tribunal refused permission to appeal but that decision was quashed in the Administrative Court on 23 June 2003. In due course on 28 June 2005 the Deputy President of the AIT, which had then been constituted by statute in place of the adjudicators and the Immigration Appeal Tribunal, ordered that the appeal be reconsidered. On 13 October 2005 the AIT concluded that the adjudicator’s original findings of fact were vitiated by error of law and adjourned the case for a further hearing. That took place on 18 January 2006 and led to the determination of 28 February 2006 which, as I have said, is the subject of this appeal.[2]The appellant claims to fear ill-treatment were he returned to Iran for two reasons. First, he was said to be a deserter who had escaped from military custody following his interrogation and ill-treatment after he had disobeyed an order to kill a civilian. Secondly, it was said that he had had an adulterous affair with the wife of a Mufti. The appellant had made a number of statements to his solicitor at the hearing on 18 January 2006, at which he gave evidence through an interpreter. He adopted the statements as part of his testimony. The details of his account as given by him are set out by the AIT as follows:
“15. The appellant claimed that he was a conscript soldier in the Iranian Army. On one occasion when the appellant was with other soldiers including an Army Commander, he, and the group of soldiers, were briefed to go to a family and seize their weapons. An Officer ordered the appellant and other soldiers to shoot and kill an innocent and helpless old man. Neither the appellant nor the other soldiers were willing to do this and the appellant and the other soldiers then arrested a young man and took him to Head Quarters. The appellant returned to his army unit. During that night whilst the appellant was on duty as a guardsman, he was hit by an object on his head and found himself in a dungeon. He was kicked and punched whilst in detention by three or four other people who asked him which party or group he belonged to and why he disobeyed the order to kill from his senior officer. The appellant was then taken for interrogation but remained silent. He became unconscious after being beaten and was stabbed in the stomach and wounded. As a result, he was taken to the Army Hospital in the city of Kermanshah and was in a coma for approximately one week. In hospital he regained consciousness and realised that his teeth were broken and had an operation on his stomach to repair a wound. The father of the appellant managed to gain permission to visit the appellant in hospital. The appellant gave evidence that whilst in hospital there were two or three guards who were in plain clothes, but he did not know if they were armed or of they knew of the allegations that had been made against him, since they were “just waiting for me to recover to take me to court. “16. A friend of the appellant’s father, named Amir Reza, who worked for the regime, said that the Officers were suspicious that the appellant was involved with political parties and had disobeyed his military superiors and that he would be tried in court. It was then decided by the appellant and his father that the appellant had to escape from hospital. The father of the appellant, together with the appellant’s cousin named Taqiollah bribed two hospital staff by the payment of 3,000,000 Tomans. As a result, the appellant was taken by a nurse to the hospital garden where he managed to escape in a car belonging to Taqiollah. They travelled to Tehren directly from the hospital. The appellant claimed that the authorities were looking for him and his father and that two days after his escape from hospital officers had visited the family home and searched for him and his father. Amir Reza believed that the appellant could no longer stay in Tehran because he would be found there and it was decided that the appellant should go to the city of Kerman and stay at his maternal aunt’s home, which he did. “17. The appellant gave evidence that throughout the time he was in Kerman, which was approximately four years, he ‘feared being caught’ by the Authorities, but nevertheless continued working as a taxi driver. “18. Whilst working as a taxi driver in 2001, the appellant gave a lift to a woman called Azam. The woman introduced herself as the wife of a Prayer Leader/Mufti, in Kerman. The appellant’s family knew him well and knew he was a ‘malicious person.’ Azam told the appellant how her husband paid no attention to her and beat her up. During one month of knowing each other, their relationship became serious and a sexual relationship developed. The appellant gave evidence that they conducted their relationship at his maternal aunt’s house, since nearly every day the appellant came to the city of Kerman and this was known by Azam and they went together to the aunt’s house to conduct their relationship. The appellant never went into the house of Azam. The appellant was not concerned about Azam being identified, because in Oran the women generally had their face covered, as did Azam, and also, the aunt did not have ‘very much contact with Azam. She knew I was bringing the woman (Azam) back, but never interfered with my personal life’. “19. The appellant and Azam planned to leave the country. Azam had taken all the money and gold belonging to her husband. The appellant gave evidence that the plan was to go to Tabriz and from there out of the country. The appellant in his witness statement of 4th January 2006 stated that he and Azam ‘were heading off to the coach station in Kerman to go to Tabriz’. The appellant in evidence stated that he did not want to cross the border by coach, because they had an agreement with their smuggler, and that they ‘went to the coach terminal in Kerman and from there wanted to cross the border’. It was at the coach station at Kerman that the appellant and Azam were approached by officers. Two officers stopped the appellant and questioned him and Azam as to the nature of their relationship. The appellant stated that Azam was his wife and the officers asked for their ID cards. The appellant told the officers he did have his ID card. According to the appellant’s Witness Statement of 25th April 2000, he was asked to follow the officers to the Police Station so they could establish the truth, but realising the dangerous situation he was in, he asked Azam to follow their instructions and she got out of the car and was questioned. In evidence at this hearing, the appellant stated that the officers ‘never asked me to get out of the car because they wanted to question us separately’. When Azam had left the car, the appellant immediately drove away and after driving for approximately 10-15 minutes, parked in a street and ‘got a friend to collect the car’. The appellant quickly obtained a hire car and went to Tabriz. The following day the appellant left Iran and fled to Turkey. “20. The appellant failed to claim asylum in Turkey because ‘Turkey does not accept any asylum application’. The appellant worked in Turkey in order to raise money to get to a safe country. After eleven months, the appellant paid an agent to take him to Greece where he stayed for approximately three months before being brought by an agent to the United Kingdom. “21. After the appellant had left Kerman, the appellant claimed that his father was detained for two and a half years as ‘a kind of hostage’, to try to secure the return of the appellant and when it was realised that the appellant had not returned, his father was released on condition that he report to the Authorities twice daily. The appellant was aware of this fact because his mother came to the United Kingdom in or about March 2005 to visit him. In addition, the appellant was in touch with his mother by telephone.”
[3]The Home Office Presenting Officer accepted (paragraph 32, page 32) that if the appellant’s account was in its totality a credible one, then on return he would be: “at real risk [that is to say of persecution] if returned as a deserter, or a political dissident who was wanted by the Authorities”.[4]There is at the outset what may be called a peculiarity about the case. Granting permission to appeal on 25 January 2006 the Senior Immigration

Judge said this:

“The panel who heard the appeal (including myself) took the view that the appellant’s evidence entirely lacked credibility. I have to accept however that this sentiment does not appear in the determination sent to the parties.”
[5]Yet it is obvious enough that the panel dismissed the case on credibility grounds.

(b) :

“We have found a central core of the appellant’s account to lack credibility and to be inconsistent. Having considered the appellant’s account in its entirety we find that the basis of the appellant’s account to be unsupported by the background material before us and that his claim for asylum is based on evidence which is unreliable and lacks credibility, notwithstanding the brutal regime and the fact that corruption and bribery was widespread in Iran.”
[6]However, that is perhaps no more than a prelude to the real issues in the appeal. The AIT rejected both limbs of the appellant’s case; that is to say, his claim to be a deserter who had escaped from military custody after being-ill treated following his refusal to kill a civilian, and his claim to have had an adulterous affair with the wife of a Mufti. The appellant’s grounds and skeleton argument seek to assault the AIT’s reasons for those findings. There is, however, first a critical point which came to light only this morning. It is at best referred to obliquely in the appellant’s grounds. There it is said, paragraph 3:
“The Panel did not make any adverse findings with respect to the appellant’s account of the events giving rise to his detention. That account was corroborated by an expert report and has remained entirely consistent.”
[7]Nowhere in the AIT’s reasoning is any attention paid to the specific question whether the events allegedly giving rise to the appellant’s interrogation and detention took place. There is no reasoning to show why they disbelieved, if they did, the appellant’s claim that he had refused to kill a civilian and thus disobeyed the orders of his officer. It may be implicit in the reasoning of the tribunal that in fact they disbelieved that part of the account, but it is certainly not expressed and as I have said there are no reasons given in relation to that part of the case. The details and, to some extent, compressed reasoning of the AIT from paragraph 35 onwards is directed to the later part of what the appellant said in his testimony and in his statements: his interrogation, his detention, his escape eventually, his affair with the wife of the Mufti and his sojourn for four years before he came to this country. All those matters are addressed, but nowhere do the AIT address the question: did this man disobey his officer’s order? It seems to us that this is an important omission. The view taken of that part of the case and the reasons for it might colour the AIT’s approach to the appellant’s subsequent complaints. More important, for all we know, that issue might itself have profound effects on how the appellant might be treated were he to be returned to Iran.[8]Notwithstanding Mr Payne’s gallant attempts to save the decision by reference to the fact that the AIT do deal with the interrogation of the appellant which clearly took place on his account shortly after the alleged disobedience, and his submission that it is implicit in the reasoning of the AIT, not least when it is read with the reason given for granting permission to appeal to this court, that in fact the account given was disbelieved, it seems to us that the omission cannot be repaired by any such recourse. The appellant was entitled to know what the AIT thought of this initial part of his account and why they thought it. For that reason alone, it seems to me the AIT’s decision is legally defective and cannot withstand this appeal.[9]It is, however, necessary to look as briefly as I may at the other grounds that are canvassed more directly in the skeleton argument and the original grounds as drafted. First, the appellant contends that the AIT’s reasons for rejecting his account of his detention, escape and subsequent relocation, betray a failure to confront the actual evidence. This part of the argument relies in large measure on the contention that the AIT articulated three, and only three, reasons for their conclusion and Mr Lewis attacks these three reasons in turn.[10]The first was, and I quote paragraph 35(c) of the AIT determination:
“The appellant provided no credible evidence as to how his father came to know that he was in hospital. As a suspected political dissident, we believed, having considered the objective material, that the regime were hardly likely to have notified the appellant’s family of his arrest.”
The second reason, paragraph 35(c):
“We do not think having considered the nature of the regime as outlined in the objective material, that it is credible that two hospital staff would have placed themselves at such serious risk of severe punishment (and possibly death) from the Authorities taking into account that the appellant’s absence would quickly be discovered and that the hospital staff would be required to give account for the appellant’s absence.”
The third reason was the unlikelihood, as the AIT saw it, that if in truth the appellant was at risk as a deserter or escapee that he would go with his father and live in a place where large numbers of his family lived. He would surely have left the country or at least gone to an area where he had no relatives (see paragraph 35(e)).[11]It is convenient to deal shortly with the appellant’s assault on these three reasons before describing those which relate to the affair with the Mufti’s wife. As to the first reason, the appellant says it was never his case or his evidence that the regime notified his family of the arrest; rather, he said, he persuaded a nurse to contact his family. In one of his statements he said that his father’s friend, Amir Reza, had discovered he was suspected of being a political offender and had communicated with his father.[12]In my judgment there is something in this complaint. The comment about the regime not being likely to inform the family is wide of the mark given the evidence about the nurse and Amir Reza. However, in the same paragraph (35(c)) the AIT make a reference to Amir Reza, and there is an implicit recognition that there had been communications between that person and the father. More importantly, the real point being made by the AIT goes not so much to the family’s state of knowledge as to the assertion which the AIT disbelieved, that the appellant’s father would have been allowed to visit him every day.[13]Turning to the second reason, the appellant says there was expert evidence confirming the prevalence of bribery at every level in Iranian society. The reference here is to the two hospital staff who it is said were bribed to secure the appellant’s release. In particular it is contended there was expert testimony confirming that the means of escape through bribery which the appellant described, while rare, was not implausible. It is said that no reason is given for rejecting this expert opinion, and the AIT’s comment at paragraph 35(d) that the species of bribery relied on involving the two nurses was “simply inconsistent with the objective material” fails to identify any objective material that would support that view.[14]This part of the case is weak. It is true that there is no reference in the AIT’s reasoning to the report of the expert. However, they give full reasons for rejecting this part of the appellant’s account; they are to be found at paragraph 35(d). They would, in my judgment, suffice if that stood alone as a ground of appeal.[15]I turn to the third reason. It is said that the appellant explained that his parents were reluctant for him to leave and he believed the situation in Iran would improve. He said also that the authorities were unaware of the presence of relatives of his in the area where he went because there was no registration system in Iran; that was confirmed in the supplementary expert report. So the contention is that the appellant’s account of his relocation is rational and consistent. However, it seems to be undisputed that this relocation lasted for a period of some four years. The AIT emphasised that: see paragraph 35(e). I doubt for my part whether the assault on this reason again, if it stood alone, would carry the appeal.[16]Quite apart from the weaknesses in these points, it is important to recognise that the appellant in his counsel’s grounds and skeleton argument does less than justice to the AIT decision. It is not right that there are only these three reasons given by the AIT for their conclusions on what may be called the desertion part of the case. As is pointed out by Mr Payne in his skeleton for the respondent, others are to be found in the determination also. It is convenient to quote paragraph 10 of the skeleton:
““For example, the AIT held that: “a) It was unlikely that, if the Appellant was being detained as a political dissident as alleged, his father would have been permitted by the Iranian authorities to visit him. [We interpolate the evidence was that after complaint or representations had been made the father visited him daily] “b) The fact that the Appellant was able to work for 4 years as a taxi driver picking up passengers and being exposed to the public was not indicative of an individual who feared the authorities.”
That last point is implicit in the reasoning in paragraph 35(e).[17]We shall have to assess the cumulative effect of these points pro and con, but it is convenient to turn briefly to the points that concern the appellant’s relationship with the Mufti’s wife.

(g) :

“The appellant gave us no details of how he and she met.”
In fact, the appellant explained that they had met he collected her in his taxi.[18]However, it is right that the AIT were plainly aware of this. They recite the fact at paragraph 18 of their determination, which I have read. In any event, the AIT did not base their reasoning on so slender a point as this. Their effective reasons for rejecting this part of the case concerning the Mufti’s wife are set out at 35(g). They are, to put it shortly: 1) It was unlikely that someone in the appellant’s position, effectively a fugitive from the regime, would have placed himself at such risk by actions such as these. 2) His claimed lack of knowledge as to whether she had any children. 3) The fact that after he left Iran he seems to have made no attempt to discover what happened to her. Those reasons, I repeat again, if the matter stood alone would, as I see it, be legally sufficient for the conclusion in question.[19]The second point on this part of the case consists in the appellant’s criticism of the AIT’s comment: “We do not think it credible that the appellant or Azam [that is the lady’s name] would have tried to leave the country without ID cards, fake or original.” [see paragraph 35(g)] The appellant says he had consistently stated that he and Azab were to be taken out of the country with the assistance of an agent, and it is reiterated that there is no registration system in Iran. So it is claimed that it was quite wrong on the facts to take this point on identity cards against the appellant. However, there was no suggestion that the appellant expected to be given identification documentation by an agent. The AIT’s comment on its own is a reasonable one, not displaced by the lack of a general registration system.[20]The third and final point consists in an assault on the AIT’s comment (paragraph 35(h)) that the appellant’s account of being stopped by officers:
“lacks clarity and, in parts, was contradictory.”
It is enough to say that there is nothing here of sufficient substance to carry the appeal.[21]Now it is right that all these points need to be looked at together. If it were not for the first point which I have addressed, namely the tribunal’s failure to consider expressly the very question whether the triggering event here happened at all, it seems to me that the decision might well survive. But given that initial failure, the whole decision is I think infected. One does not know what the AIT might make of the alleged subsequent events relating to the appellant’s interrogation and so forth if they found that the triggering event happened.[22]Accordingly, it seems to me that the appeal must be allowed and the case remitted for rehearing in its entirety before a fresh panel of the tribunal.

LORD JUSTICE SEDLEY: I agree with my Lord, Lord Justice Laws, that this appeal succeeds on the ground that the AIT have failed to make any specific finding about the appellant’s account of the potentially important episode which begins his story. Insofar as their generic rejection of what they call “the central core” of his account is relied on, its vice, as the Chairman’s grant of permission to appeal may have been intended to recognise, is that it incorporates a failure to grapple with the intrinsic and extrinsic credibility of the appellant’s account of the triggering episode. If, as is not inconceivable, they had accepted that this account could well be true, it would at least cast a different light on the credibility of his account of arrest and hospitalisation, and if on that then possibly on his account of escape. Whatever attitude was then taken to the later account of an affair with a Mufti’s wife, such an approach could make a critical difference to the appellant’s asylum claim. We cannot know what a legally proper appraisal of his case will produce but, like my Lord, I consider that there has not so far been one.

[24]As to Mr Lewis’s other grounds, I do not disagree with the opinion of my Lord that they are legally tenable, but that does not of course mean that they are necessarily right. On remission it will be for a freshly constituted tribunal to assess the credibility of these allegations for itself in the light of all the available evidence.

SIR IGOR JUDGE: I agree with both judgments. I should simply emphasise that the rehearing before the fresh panel shall be a complete rehearing and that the ultimate conclusion will depend on the evidence and material then produced.

[26]Nothing in the judgments of the court today should be taken as a hint or indication of any finding or findings which it would be appropriate for the new panel to make.[27]The appeal will be allowed.

Order

Appeal allowed.