Bahrami, R (on the application of) v Immigration Appeal Tribunal [2003] EWHC 1453 (Admin)

Case No CO/4786/2002[2003] EWHC 1453 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 4 June 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MAURICE KAY
Between
THE QUEEN ON THE APPLICATION OF BAHRAMIClaimant-v-
Between
THE IMMIGRATION APPEAL TRIBUNALDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR SOUTHEY (instructed by WILSON & CO) appeared for CLAIMANTMR ADAMSON (instructed by TREASURY SOLICITOR) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]MR JUSTICE MAURICE KAY: The claimant is a citizen of Iran. He came to this country on 28th October 2000, and claimed asylum. By a decision evidenced in a letter dated 21st June 2001, the Secretary of State rejected both asylum and human rights claims. In a determination promulgated on 10th June 2002, an adjudicator dismissed the claimant's appeals under both headings. In so doing, she said this:
"Having considered the evidence as a whole, I do not find the Appellant to be a credible witness. The Appellant claimed his father edited and published anti-state journals between 1985 and 1990 and that in 1990 his father and uncle were arrested and released on bail after a search of their house. The Appellant claimed his father's home was frequently raided by the authorities between 1990 and 1998. However, the Appellant did not seek to leave Iran because of these alleged problems and in November 1998 he was called up into the military. If the Appellant's family had been as politically active as he claimed and under such constant surveillance, I do not find it plausible that the authorities would have been unaware of this when he was called up into the military. At interview, the Appellant said he was arrested, interrogated and detained for two months because his criticism of certain army activities was viewed as political interference. I take the view that, although this punishment may appear to be harsh, it would be within the bounds of military discipline. After being detained two months, the Appellant was released and posted to another prison to continue his military service. This adds corroboration to my view that the Appellant was subjected to military discipline. The fact the Appellant was released from detention in order to continue with his military service leads me to conclude that he was of no continuing interest to the authorities. "
By his own admission, the Appellant is a deserter from the army. This is an offence under military service which will be punishable per se in any country. The Appellant had already served a sentence for disobeying orders; if he were to return, doubtless the punishment would be severe, but not disproportionate to the offence. "After escaping from prison, the Appellant fled to his grandfather's house in the same city. I accept the Secretary of State's view that, had he been of any interest to the authorities, they would have looked for him after his escape and the houses of his close relatives would have been searched. I accept the Secretary of State's view that it is not credible he would have been able to remain at his grandfather's house for a whole month before leaving if the authorities had had any interest in him." The adjudicator then dismissed the asylum appeal, before adding:
"I now consider the Appellant's appeal under the ECHR. For the reasons above, the Appellant has failed to persuade me, to the appropriate lower standard, that there would be a breach of Article 3 if he were to be returned to Iran. He may face punishment from the military for desertion, but he has failed to persuade me of a reasonable likelihood that this would amount to inhuman/degrading treatment within Article 3. With regard to Article 8, for the reasons stated above, he has failed to persuade me, to the appropriate lower standard, that there would be any breach of his physical and moral integrity if he were to be returned ... the appeal under the Human Rights Act is therefore dismissed."
[2]I infer from the way in which that part of the decision is set out that the adjudicator accepted that the claimant had been detained on two occasions, the first of which ended with his release, as described in the determination, and the second of which ended with his escape, as referred to in a later passage. So far as that second and shorter period of detention was concerned, there was before the adjudicator material, including a witness statement from the claimant, which described that period of detention as being one during which he was taken many times for interrogation, and asked the same questions over and over. He also said that:
"I was sworn at and beaten so severely that they broke my nose."
[3]Following the dismissal of his appeals, the claimant sought leave to appeal to the Immigration Appeal Tribunal. This was refused in a determination which was notified on 15th July 2002. A number of grounds of appeal were advanced to the Immigration Appeal Tribunal. For present purposes, the ones which are significant are those which are numbered 4(a) and 4(d) in the grounds of appeal. That will help to explain this passage from the determination of the Immigration Appeal Tribunal, in refusing leave to appeal. The Acting Vice-President said:
"Ground 4(a) asserts that the Adjudicator had failed to consider what punishment the Applicant would face. The Adjudicator had in fact described earlier punishment for disobeying orders (detention for two months) as harsh, but within the bounds of military discipline. The Applicant had failed to persuade her that any future punishment for desertion would breach his Article 3 rights. That places the burden of proof where it properly lies ... Ground (d) asserts that the Adjudicator failed to consider the extent to which conditions in prison, if the Appellant were detained, would violate his rights under Article 3. I repeat my earlier comments in respect of that ground. "
I am not persuaded that an appeal to the Tribunal would have a real prospect of success or that there is any other compelling reason why an appeal should be heard."[4]In the present proceedings in this court, the claimant has a limited permission to apply for judicial review of the refusal of leave by the Immigration Appeal Tribunal. I say limited permission, because Lightman J limited the grant of permission to a single ground. The order he made states:
"Permission be granted on the issue of whether the Adjudicator and the Immigration Appeal Tribunal in holding that the likely punishment for desertion will not be disproportionate for the offence and not inhuman and degrading has sufficiently and properly taken into account general prison conditions in Iran."
[5]The compass of this application falls within Article 3 of the European Convention on Human Rights and Fundamental Freedoms, which provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
It is common ground that either by reference to its duration or the conditions in which it is served, a period of imprisonment may involve a breach of Article 3. It is also well known that the threshold for such a breach is quite a high one.[6]In essence, the challenge to the refusal of leave by the Immigration Appeal Tribunal, and through that to the determination of the adjudicator, is a reasons-based challenge, in the sense that Mr Southey, on behalf of the claimant, accepts that on the material before her, it was open to the adjudicator to reach a permissible conclusion that removal to Iran would not involve a breach of this country's obligations under Article 3. His submission is that it is not possible to tell from the adjudicator's reasoning that she properly considered prison conditions in Iran, or that she properly discounted them in the claimant's case. He submits that the determination, in particular, the parts of it which I have set out, falls foul of the appropriate test for the articulation of reasons by an adjudicator. In support of that submission, he refers to a number of authorities, including R v Immigration Appeal Tribunal ex parte Amin [1992] Imm AR 367, and in particular the passage in the judgment of Schiemann J, at page 374, which was in these terms:
"In my judgment, Adjudicators should indicate with some clarity in their decisions: "1) what evidence they accept; "2) what evidence they reject; "3) whether there is any evidence as to which they cannot make up their mind, whether or not they accept it; "4) what, if any, evidence they regard as irrelevant."
[7]Mr Southey also relies on the recent decision of the Court of Appeal in English v Emery Reimbold & Strick Ltd [2002] WLR 2049, and in particular, the passage in paragraphs 18 and 19, on page 2418. Giving the judgment of the court, the Master of the Rolls stated:
"If the judgment does not make it clear why the Judge has reached his decision, it may well be impossible within the summary procedure of an application for permission to appeal to form any view as to whether the Judge was right or wrong. In that event permission to appeal may be given simply because justice requires that the decision be subjected to the full scrutiny of an appeal. "
It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon." Whilst that judgment was written in the context of reasoned judgments in civil cases generally, Mr Adamson, on behalf of the Secretary of State, does not dispute its relevance in the present context.[8]In my judgment, what is essential is not that an adjudicator should deal with every point at length, but that the determination should be sufficiently reasoned to enable a claimant, his advisers, and any appellate or reviewing body, to see why the claimant lost on a particular issue. If the determination satisfies that test, it will usually be the case that the more schematic approach, formulated by Schiemann J in Amin, does not need to be considered. In considering the determination of an adjudicator, it is appropriate for the court to read it as a whole, analytically but without pedantry, in a common sense way. At the same time, the court must resist the temptation to engage in any conscious or subconscious rewriting of the adjudicator's determination.[9]Applying that approach to the present case, it is then necessary to assess what the adjudicator here decided. It is apparent from the passages which I have set out that she did not find the claimant to be wholly credible. Indeed, she says so in terms. It is apparent that she did accept two periods of detention, the first of which ended in release, and the second one upon escape. It is also apparent that she did not accept significant ill-treatment of a kind that would approach the level of severity which might engage Article 3. Nor did she accept that the claimant was considered to be at all politically significant. She found, as Mr Southey accepts she was entitled to find, that the authorities had no lasting interest in the claimant save, of course, as to his liability to prosecution for desertion. She accepted that such prosecution was likely to occur and to result in imprisonment. The crucial question then becomes: did she consider the claimant's case on the harshness of prison conditions in Iran? That case was based not only on his own account, not all of which had been accepted, but also on the objective material. The current report from the United States Department of State referred to:
"... numerous credible reports that security forces and prison personnel continued to torture detainees and prisoners. Some prison facilities ... are notorious for the cruel and prolonged acts of torture inflicted upon political opponents of the Government. Common methods include suspension for long periods in contorted positions, burning with cigarettes, sleep deprivation, and most frequently, severe and repeated beatings with cables or other instruments on the back and on the soles of the feet. Prisoners have also reported beatings about the ears, inducing partial or complete deafness, and punching in the eyes, leading to partial or complete blindness ... "
Prison conditions are harsh. Some prisoners are held in solitary confinement or denied adequate food or medical care in order to force confessions." The current CIPU report contained this passage:
"Procedures governing arrest, detention and trial are rarely made public. Reports of systematic human rights abuses include extrajudicial killings and summary executions; disappearances; widespread use of torture and other degrading treatment; harsh prison conditions; arbitrary arrest and detention; lack of due process; unfair trials; infringement on citizens' privacy; and restrictions on freedom of speech, assembly, association, religion and movement."
[10]In my judgment, there is no doubt that the adjudicator did consider prison conditions in Iran, both in their physical manifestations and in relation to the length of sentences. In summarising the submissions that had been made on behalf of the claimant, she included this passage:
"Prison conditions were notoriously harsh and could be life-threatening. Brutality and torture were common. Given his motives for disobeying orders, the court was urged to find that this was not legitimate prosecution."
[11]She also referred to a submission that:
"the further sentence for desertion would be unduly harsh."
[12]It is implicit in her determination that the adjudicator did not consider that upon return, the claimant would be likely to be subjected to anything more than harsh punishment in accordance with military discipline. She was simply not satisfied that there was a reasonable likelihood that that punishment would cross the Article 3 threshold, either by reason of its duration or its physical circumstances. It seems to me that her conclusion in that regard was conditioned by her finding as to the lack of underlying interest on the part of the authorities in the claimant, which in turn was a finding which arose out of her rejection of the political aspects of his account.[13]All that is sufficiently explained in a well structured, if somewhat laconically expressed, determination. I am not persuaded that the adjudicator failed to consider prison conditions in Iran, or that she failed to provide sufficient reasons for her decision. Mr Southey seeks to criticise her use of the words "not disproportionate" in order to found a submission to the effect that the adjudicator concentrated on length rather than conditions. I do not accept that submission. She clearly had in mind the submission that had been made on behalf of the claimant, but concluded that it was not made good in his case.[14]In the present proceedings, what is under challenge is, of course, the refusal of leave by the Immigration Appeal Tribunal. I have already set out the basis of that refusal as it appears in the determination. In my judgment, there was no legal error in that refusal of leave to appeal by the Immigration Appeal Tribunal. The approach of the Acting Vice-President to the determination of the adjudicator was entirely permissible. It was certainly open to him to find that any appeal to the Tribunal would have no real prospect of success, and that there would be no other compelling reason why such an appeal should be heard. Accordingly, this application for judicial review fails.[15]MR SOUTHEY: My Lord, may I raise two matters? Firstly, may I ask for leave to appeal. I certainly do not raise it on the second limb. I recognise this is a case which turns very much on its individual facts. Having said that, I would submit that the facts of this case, which, my Lord, perhaps recognised during argument are that the determination, although as your Lordship said is structured well at times, the reasoning is not as clear as it perhaps might be. As a result, in my submission, there is a sufficient prospect that the Court of Appeal may conclude that the reasoning is inadequate.[16]The second application I would make is for a legal aid assessment, my Lord.[17]MR JUSTICE MAURICE KAY: Yes. As to the second, there is a certificate but it appears not to cover today's hearing.[18]MR SOUTHEY: I understand. It has been extended.[19]MR JUSTICE MAURICE KAY: Upon it being filed within seven days of course. Mr Adamson, do you want to say anything about the application for permission to appeal?[20]MR ADAMSON: My Lord, only that my learned friend should seek permission from the Court of Appeal if he feels there is merit in it.[21]MR JUSTICE MAURICE KAY: He is not going to get permission from me because I do not think there is a real prospect of success.[22]Thank you both very much.

Cited in 2 later judgments