A v Secretary of State for the Home Department [2006] EWCA Civ 973

Case No C5/2006/0932[2006] EWCA Civ 973
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT NO. AS/08320/2004]
Venue Royal Courts of JusticeDate Wednesday, 28 th June 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE SEDLEY
Between
ACLAIMANT/APPELLANTSECRETARY OF STATE FOR THE HOME DEPARTMENTDEFENDANT/RESPONDENT
(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)
THE APPLICANT APPEARED IN PERSON WITH A LITIGATION FRIEND. for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
J U D G M E N T

LORD JUSTICE SEDLEY:

This

[1]application for permission to appeal, and for an enlargement of time in order to do so, is made in person by Mr A. He has the advantage of having with him a friend, Mr Khajenzadeh, who has interpreted for him.[2]On the reconsideration hearing which took place in this case, the applicant’s entire account of persecution of him and his wife by the Iranian authorities was disbelieved. The AIT had reminded itself that the in-country evidence contained in the CIPU report showed that if the applicant was at risk from the authorities in Iran, it was risk of the most terrible and arbitrary kind. But in spite of clinical evidence that the applicant’s physical and psychological scars were consistent with his account, the AIT concluded that his entire story was a lie.[3]It is the AIT’s duty so to find where the evidence warrants it, and there can be no doubt that among the eight reasons for doing so listed by them in paragraph 16 of their decision are several which were open to them in relation to the monarchist party, of which the applicant claims to have been an active member, notwithstanding that he has advanced intelligible answers to all of them. But when the applicant produced what he was said were the title deeds of his mother’s property which had been “confiscated” to secure his release from detention, the AIT said this in paragraph 16(vii):
“At the hearing the Appellant provided what he said were the title deeds to the property used as a security for his release. His oral evidence was that the property had been confiscated the day after a court hearing that the Appellant was supposed to attend subsequent to his release. The Tribunal finds it implausible that if the property had been confiscated in the way described that the Appellant would have been able to obtain the title deeds to that property. His evidence was that those title deeds had been sent via an intermediary to the Appellant whilst he was in the United Kingdom. No doubt the title deeds would have been taken from the Appellant’s mother at the time of the confiscation of the property itself.”
[4]I interpolate that this summary of the applicant’s evidence about how he came to be released in paragraph 11 of the AIT decision is incomplete. I do not have the SEF or the interview record, and they will need to be provided; but in the applicant’s statement of 9 July 2004, paragraph 13, it is made clear that his case was that an official had to be bribed to accept the house as security for his release. When you look at the deed in the well-drawn translation which was also provided to the AIT you see this, at page 42 of the bundle. The vendor or transactor is named in the first column. The buyer or beneficiary named in the second column is the Islamic Revolutionary Court. Under the head “Property and Price” in the third column appear these words:
“Entire six shares of the property against the amount of [it looks like 400 million Rials] is held by the Islamic Revolutionary Court to release [Mr A] on bail.”
The next column is headed “Type of transaction” and contains the words “Held as security”. The date of the period is given in the following column as 8/2/03.[5]I ought to say here that this is to my own knowledge the second case recently to come before this court in which the practice of the Iranian authorities in this regard has come under scrutiny. It looks as if they take a charge on family property as security for the release of one of its members, and mark the deeds accordingly without confiscating them. If this deed is genuine, that seems to be what has happened here, with the result that the deeds have remained with the family but the property, one presumes, became forfeit to the state on the applicant’s flight.[6]The AIT do not find that this document is not genuine. They limit themselves in the next sub-paragraph of paragraph 16 to describing as “hardly plausible” the applicant’s account of how the document was brought to him from London.[7]I have to say that the now prevalent practice of finding that an applicant is lying because the events described by him are “implausible” is not attractive and may even be said not to be intellectually respectable. We all know from our own lives that the improbable and the implausible happen repeatedly. It is the task of the fact-finder to decide not whether a particular occurrence or set or occurrences is probable or plausible in the sense that it was likely to happen, but whether, however objectively improbable or implausible, it is what did happen. Increasingly, as it seems to me, immigration judges are substituting the former for the latter.[8]Returning to the documentary evidence, I think it arguable that the corroborative documentation produced by the applicant did not receive the consideration it was entitled to, and that if it had done it might have cohered with the corroborative medical evidence to stem or even to turn the tide of disbelief.[9]The application to the AIT was out of time. There is no promulgation date on the decision, though it was signed off on 13 October 2005, but the refusal of Dr Storey, a senior immigration judge, records it as having been notified on 26 October (the applicant suggests it was 28 October), giving the applicant until 11 (or 13) November to apply to the AIT for permission to appeal. The applicant says that he did not retrieve the papers from his solicitor until 2 December and he had his application in by the 14th. Dr Storey refused it for want of jurisdiction on 7 March 2006. The appeal notice is dated 21 April 2006.[10]I have explained to Mr A that I cannot on the present state of the evidence enlarge his time. Nor could I possibly on the present state of the evidence refuse to enlarge time. What I propose to do is to give him two weeks from today to put in to the Civil Appeals Office, with a copy to the Treasury Solicitor on behalf of the Home Office, his full and considered explanation of the lapse of time, and I will give the Home Office 14 days thereafter to respond to it. They may accept the explanation and take no point on time. If they do argue that permission to appeal should be refused because the application is out of time, then Mr A will have a further week in which to respond in writing to the Home Office’s objection. Whether there is agreement by the Home Office or disagreement, I will consider the papers and decide how to proceed in relation to time. If I consider that I am not in a position to decide the issue of time myself, I will send it on to be heard by the full court as the first issue in the appeal for which I am otherwise, as I have indicated, prepared to grant permission.[11]So the grant of permission is subject to the resolution of the question of time.[12]This judgment will be transcribed at public expense and a copy provided to Mr A. It will not be available for a number of weeks, so he must do what I have said without waiting for the written judgment. When it comes, it will make it clear to the Home Office as well as to Mr A why I have made the directions I have.

Order

Application granted.

Cited in 3 later judgments