Smaili, R (on the application of) v Immigration Appeal Tribunal [2005] EWHC 1951 (Admin)

Case No CO/2376/05[2005] EWHC 1951 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 15th August 2005
Strand
London WC2
B E F O R E:
MR JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OF CIAMAK SMAILIClaimant-v-
Between
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 A DURANCE (instructed by Browell Smith and Company, Newcastle upon Tyne NE1 8AQ) appeared for Claimant for The Respondent did not appear and was not representedMISS S BROADFOOT (instructed by the Treasury Solicitor) appeared for Interested Party, the Secretary for the Home Department
J U D G M E N T
[1]MR JUSTICE STANLEY BURNTON: This is an application for judicial review of the decision of the Immigration Appeal Tribunal, notified on 8th February of this year, in which it allowed the appeal of the Home Secretary against a decision of Mr DJB Trotter, an adjudicator, who had himself, in his decision, promulgated on 9th December 2003, I think, allowed Mr Smaili's appeal to remain in this country on human rights and asylum grounds.[2]The claimant is an Iranian Christian. I understand from the terms of the adjudicator's decision, as well as Miss Broadfoot's submissions, that there have been a number of cases in which Iranian Christians have sought asylum in this country. They are entitled to asylum if there is a reasonable risk of there being persecuted on their return to Iran on the basis of their religion. The issue before the adjudicator, and similarly before the Immigration Appeal Tribunal, was whether the claimant had established that risk.[3]The Immigration Appeal Tribunal allowed the appeal on the basis expressly that the finding of the adjudicator that the claimant did face such a risk was perverse. In doing so they referred really to four paragraphs of his determination. One in which he described what he had done when in Iran after he had converted to Christianity, as he said he had, and the other referring to the risk he faced on return. In effect the Tribunal held that the conclusion of the adjudicator was inconsistent with other parts of the adjudicator's determination, and in particular that part referring to the activities of the claimant after conversion to Christianity in Iran, that having been described in paragraph 12 of the adjudicator's determination in which he quoted from the claimant's evidence.[4]As I have said, the basis of the appeals being allowed (which are restricted to questions of law) was that the decision of the adjudicator was perverse. As in so many cases perversity and lack of adequate reasons go hand in hand because there are a number of conclusions of the adjudicator reached by him, contrary to the case of the claimant as well as for it, for which it is at the very least difficult to see the evidential basis when reading the decision and there are, as I suggested during argument, possibly other arguable inconsistencies in his reasoning.[5]The ground of appeal to the Tribunal was that the adjudicator's findings in relation to the acceptance of the credibility of the appellant were selective and perverse. There is a reference to the rejection of the evidence of the claimant that she was wanted for apostasy, on the one hand, and on the other hand an acceptance that the appellant would resume his former lifestyle and that that would inevitably lead to him being persecuted. It was submitted that the finding was perverse.[6]I am clear that the decision of the Immigration Tribunal was fairly and squarely within the Grounds of Appeal. The question is however: whether the decision of the Tribunal was itself perverse. It is, in a sense, a perversity on perversity test.[7]The adjudicator cited the claimant's evidence setting out what he had done after his conversion. He did that in paragraph 12 where quoting from the claimant he said:
"I [the claimant] used to speak to others about my faith but because of conditions in Iran you have to take precautions. I spoke to those whom I could trust usually whom I knew. To whom I could speak openly and freely."
[8]Consistently with that the adjudicator found that although members of Etallat, which I understand to be a religious police authority in Iran, had visited the claimant in his home, the claimant was not wanted for apostasy in Iran, would not be arrested for apostasy, he might be the subject for discrimination but he was not currently wanted by the authorities. Had he been wanted by the authorities or had he been at risk of imprisonment, or risk of persecution when Etallat visited his home, that would have been, of course, as a result of the claimant's activities before the date of that visit. However, the adjudicator found that those activities had not led to any such thing.[9]In paragraph 26 the adjudicator said:
"I am not persuaded that the claimant is currently wanted by the authorities."
The crux of the adjudicator's decision is in paragraph 27:
"I do not accept that his merely having sought asylum abroad would bring persecution upon him since he is not wanted in the way that he asserted. I do not accept that he would be arrested for apostasy on return to Tehran but after he had returned to Tehran and restored to his family he would, I find, be compelled to revisit his old church, reacquaint himself with fellow members of the church and in due course again to start discussing his faith in the way that brought him into trouble and caused him to leave Iran. Once that occurred there is in my view a real risk that his previous 'misdemeanour' would come to light and this would mark him as a proselytising evangelical Christian and place him at real risk of persecution by the State."
[10]The difficulty I and the Immigration Appeal Tribunal have with that passage is that, having concluded that he was not wanted and not at risk by virtue of what he had done in the past in Iran as a Christian, and having said that what would happen if he returned would be to resume what he had done in the past, the adjudicator does not explain why that resumption would lead to what it had not before, namely persecution. It does seem to me that the Immigration Appeal Tribunal were right in concluding that that conclusion was inconsistent not only, in my judgment, with what was said in paragraph 12 of the adjudicator's determination, but also with other findings of the adjudicator as to what the position was of the claimant in Iran as a result of his activities before he left.[11]In those circumstances it seems to me that the Immigration Appeal Tribunal was justified in the decision it reached, none the less so because the adjudicator heard this case after the claimant had been in this country for some considerable time practising his Christianity, because what is referred to in paragraph 27 is a resumption of what the claimant had done before he left Iran rather than anything new.[12]Similarly this is very much a case, I accept, in which the adjudicator was seeking to assess what would happen and what the intentions and actions of the claimant would be of his return to Iran. That involved an assessment of his evidence and character, but nonetheless when one has contradictory reasons being given by the adjudicator for his conclusion the Immigration Appeal Tribunal is, in my judgment, entitled to intervene.[13]This is not a case where the Immigration Appeal Tribunal itself made any relevant findings of fact. It simply concluded that the conclusion was inconsistent with a number of his findings and to that extent was perverse. It is a conclusion with which I have to say I agree and in those circumstances the application for judicial review is dismissed. Mr Smaili, of course, will have a hearing before a fresh adjudicator and if he has a well-founded fear of persecution there is no reason to think that the adjudicator will not uphold his claim. Thank you both very much. Do you need a certificate?[14]MR DURANCE: Yes, I formerly request permission to appeal.

MR JUSTICE STANLEY BURNTON: Permission is refused.

[16]MR DURANCE: I would ask for detailed assessment.[17]MR JUSTICE STANLEY BURNTON: You just ask for the normal certificate. Not detailed assessment.[18]MR DURANCE: I am grateful.[19]MISS BROADFOOT: I have no application.