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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> MJ (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 564 (23 April 2008) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/564.html Cite as: [2008] EWCA Civ 564 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: AA/13354/2005]
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SEDLEY
and
LORD JUSTICE MOORE-BICK
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MJ (IRAN) |
Appellant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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Ms S Broadfoot (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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Crown Copyright ©
Lord Justice Sedley:
"resulted in a finding of fact that the appellant was not in that case a credible witness"
"So far as any risk on return is concerned, I do not consider that this appellant would be at risk other than as a returning failed asylum seeker. There is no evidence that he is known to the authorities, he may well have been arrested once in relation to a student demonstration but this is again now five years ago and in my view even if it occurred would not now be of any relevance."
"11. In order to avoid further delay, and a further adjournment either to seek clarification from Immigration Judge Brunnen, or to pursue an appeal to the Court of Appeal to the effect that there is a material error of law in the dismissal of the Appellant's evidence that he was involved in monarchist politics, I was invited, by way of a joint application from both parties, to follow the exceptional course of finding that there was such an error of law, and then proceeding with a full reconsideration hearing today. Both parties were prepared for such a hearing and content to undertake it today without further adjournment. I am satisfied that this is the correct course to adopt. It is both fair to both parties, and a sensible use of public funds."
"35. I note that the Determination of Adjudicator Chandler in relation to [Z's] appeal makes no reference to [Z] asserting that;
a) his mother had ever been detained by the Iranian authorities, or,
b) he had a maternal uncle detained since 2001 by the Iranian authorities on suspicion of being involved in monarchist politics, or,
c) he had a brother…who had been involved in leafleting in the local town on behalf of a monarchist group, or, in relation to his father's death in detention in 1989, or,
d) he had a brother…who had been detained on suspicion of being involved in a student demonstration, or,
e) he had a brother…who was wanted by the authorities.
36. The Appellant's assertion that his father was detained after the revolution because he had worked as a driver for senior military officials in the Shah's regime is not of itself so implausible as to be incredible. Nor is the assertion that in 1989 his father was detained because of expressions of support for monarchists in some writings that had been brought to the attention of the authorities. Nor is the assertion that his father died as a result of injuries sustained whilst in detention. On the other hand, if these assertions were true, I would have expected to see them made by the Appellant's brother [Z] as the background to, and in support of, his own asylum claim. They are not recorded as having been made by [Z] in the determination of Adjudicator Chandler of 13.10.04, and I am satisfied that if [Z] had made them that this would have occurred. If through some extraordinary chance they were omitted then I would expect there to have been a successful appeal by [Z]. In my judgement it is noteworthy that [Z] declares himself to be four years younger than the Appellant, and to have entered the United Kingdom in May 2004. As such he was seventeen in 2001, and therefore old enough to know what his brother's situation was at the time, and to have known of his mother's arrest if it occurred. By the time [Z] arrived in the United Kingdom he was nineteen and a half, and I am satisfied that he would not only have known of these matters if they had genuinely occurred, but would have reported them when making his asylum claim. In my judgement he would have given details of them if they had occurred, because if the family had the monarchist profile that the Appellant asserts as the basis for the risk that he faces upon return, it would be a profile that would equally apply to his brother [Z], and of which he would be acutely aware."
"1. This appeal comes before the court by permission of Kay L.J. He was much influenced by the fact that, some ten months after an adjudicator had dismissed Mr Otshudi's appeal, another adjudicator, on almost identical evidence, had allowed his brother's appeal. For reasons to which I shall shortly come, this cannot furnish a ground of legal challenge…
….
10. Eleven days after the IAT dismissed Mr Otshudi's appeal, his brother's asylum and human rights claims, founded on the same evidence, were allowed by a different adjudicator, Mr L D Sacks. We are told today that the Home Secretary has not sought to appeal the decision. The fact of this discrepant decision was drawn to the attention of the IAT when permission to appeal to this court was sought but the IAT made no reference to it in their refusal. Although this is recounted in the appellant's skeleton argument, and although the single Lord Justice who gave permission to the appeal was concerned by it, no submission of law is now founded on the outcome of the brother's claim, and rightly so.
11. This is not the class of case which involves what Laws LJ has called "a factual precedent" -- for example a finding about the political situation in a given country at a given moment. It is an illustration, if an alarming one, of the fact that two conscientious decision-makers can come to opposite or divergent conclusions on the same evidence. But it is no more material to the legal soundness of the present adjudicator's decision than hers would be to the soundness of the second adjudicator's decision."
This court went on, it should be said, to invite the Home Office to give very serious consideration to the possible material injustice that might nevertheless be reflected in such discrepant decision-making (see also, in this regard, Macdonald's Immigration Law paragraph 18.144).
"not a…significant part of the [immigration judge's] reasons for concluding that the Appellant's account was not credible"
Lord Justice Moore-Bick:
Lord Justice Buxton:
"did accept that the Appellant had been arrested and detained with a considerable number of others after he was involved in a student demonstration in 2000."
Order: Appeal dismissed