HD (Prison – Record of Proceedings)  Iran [2004] UKIAT 00209

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 11 June 2004

Date Determination notified: 30 July 2004 

Before

Mr Justice Ouseley (President)
Mr C M G Ockelton (Deputy President)
Mr D J Parkes (Acting Vice-President)

Between

	APPELLANT	
and	 	
Secretary of State for the Home Department	RESPONDENT	

For the Appellant:	Mr Hussein, instructed by Howells Solicitors
For the Respondent:	Mrs Giltrow, Home Office Presenting Officer

DETERMINATION AND REASONS

1.	This is an appeal against the determination of an Adjudicator, Miss J E Perrett, promulgated on 16th July 2001.  The Appellant is an Iranian who was refused asylum on 10th March 2001.  His asylum and human rights appeal was dismissed.  The Adjudicator summarised his case as follows:

“In summary, the Appellant’s case is that while undertaking his military service with Sepah, the security and intelligence service in Iran, he was asked by a friend who he had known from university to issue a certificate showing the completion of military service.  He agreed.  The friend was later arrested and gave the Appellant’s name as the person who had secured the completion document.  The friend was discovered to be a member of the Mojahedin, (the MEK).  Another friend learnt that the Appellant would be implicated and he was advised to leave immediately.  He fled there and then and went into hiding.  He made arrangements to leave the country.  He fears return as he would be immediately arrested, tortured and possibly killed.”

2.	The Adjudicator accepted that he had undertaken compulsory military service in Sepah, the Revolutionary Guards Corps, where he worked as part of the administrative process dealing with applications for certificates of c0mpleted military service.  This system was widely abused.  The Adjudicator also accepted that he had wrongly issued such a certificate to an old university friend in order to help that friend obtain a passport and also that the Appellant may have:

“… failed to complete his military service by a month or so and possibly be suspected of inappropriate dealing in military completion certificates.  The Appellant was not aware of the penalty for the latter.  The background documentation suggests that the penalty for the former is a spell of imprisonment or a fine.

I therefore need consider what would happen if returned to Iran.  I accept he would probably be questioned on arrival in connection with his military service and his unauthorised departure from the country.  I consider that any penalty would be as a result of prosecution rather than persecution.”

3.	The Adjudicator also accepted that he might be questioned about the improper issuing of military service completion certificates and that he could receive a term of imprisonment or a fine.  The Adjudicator did not accept as credible that the friend in question to whom he supplied the certificate was in the Mojahedin, a group of Marxist Islamists who are treated extremely severely in Iran, or that the Appellant was suspected of involvement with them.  She accordingly rejected the asylum claim.   

4.	She then turned to the human rights claim.  It was said that he would be killed because he was implicated in the activities of the Mojahedin or that any term of imprisonment would be harsh and degrading in Iranian prison conditions and that he would not receive a fair trial.  The Adjudicator said:

“I have considered the background documentation with regard to the treatment afforded to those returning to Iran.  I consider it likely given his age, the Appellant would be questioned about his military service, his departure and possibly the improper issuing of military completion certificates.  It could be that he would receive a term of imprisonment or fine.  The prison conditions are described in the US Department report as harsh and overcrowded.  The offences however are of a relatively minor nature and it is possible will not attract imprisonment.  The situation is easing in Iran and while the authorities attitude to human rights is far from ideal, I am satisfied that the Appellant has failed to show a real risk of treatment such as to engage either articles 2 or 3.”

5.	The Appellant appealed to the IAT, (Chairman HH Judge Slinger), which on 8th January 2002 dismissed his appeal.  The grounds of appeal attacked the adverse credibility findings and the conclusion reached by the Adjudicator as to treatment and prison conditions.  The Tribunal accepted that her conclusion that the Appellant was not suspected of being either a Mojahedin member or implicated in it was justified.  However, it criticised certain aspects of what it took to be the Adjudicator’s approach to the Appellant’s risk of imprisonment and ill treatment but concluded nonetheless that ill treatment in breach of Article 3 was a risk faced by political prisoners and that was not how the Appellant would be seen.

6.	The Court of Appeal granted permission to appeal on the sole issue as to: 

“Whether, in view of the evidence as to the use of torture in Iranian prisons, there is a risk at an appropriate level of this applicant, with his history as found by the adjudicator being tortured in the (accepted) likelihood of his being in prison.”

7.	By consent, the Tribunal decision was quashed on 11th June 2002 but no judgment was given.  The case took far too long to come on again before the Tribunal.  When it did, the Appellant decided to pursue all his grounds including those which Buxton LJ, in granting permission to appeal on the one issue identified, ruled not to be arguable.  The more Mr Hussein for the Appellant pursued those points, the sounder the conclusion of Buxton LJ appeared.  We can deal briefly with them.

8.	Mr Hussein abandoned the contention that the Adjudicator had erred in doubting the Appellant’s credibility because the Appellant’s views on freedom and democracy were far removed from the Islamic Marxist ideology of the Mojahedin.  It had been alleged by the Appellant that his own views were those of the Mojahedin in his witness statement although that was not borne out by the Adjudicator’s description of him, his dress, his western outlook and western lifestyle aspirations.

9.	Ground 1(a) rather assumes as correct, namely that the friend was a Mojahedin, what in fact the Appellant had to show and which the Adjudicator was unwilling to accept.  The Appellant’s witness statement in paragraph 3 appeared to suggest that he knew this friend’s outlook and agreed with it; it did not suggest that he was unaware that the friend was a member of the Mojahedin.  A contrary picture is given as to when he knew this friend was in the Mojahedin, in his answer in interview at A.6.  The Appellant’s evidence was internally contradictory as to what he knew about that and when.  However, given the acceptance of the contradiction between the Appellant’s views and those of the Mojahedin, it is difficult to see that the Adjudicator was not wholly entitled to conclude that the story that the information that the friend was in the Mojahedin came from another friend who was a filing clerk who saw certain papers in the course of his duty, was improbable and that the claim that the Appellant did not know of his friend’s views, was implausible in the light of his asserted knowledge of that friend’s views.

10.	Ground 1(d) denies that certain inconsistencies in the Appellant’s story existed about who suggested that the passport be obtained for the friend.  The answer at A.6 of the interview is criticised as saying that the arrest took place at the passport office;  but this is in the witness statement as well.  “The other occasion” in the Adjudicator’s decision letter could easily refer to oral evidence given to the Adjudicator.

11.	Ground 1(c) deals with corroboration and the Adjudicator’s comment as to its absence in fact as to membership of the Mojahedin.  Although it is true that there was no corroboration, that is not a sound basis, we accept, for the drawing of adverse inferences because of the secretive nature of the Mojahedin.  But there are very many and soundly expressed reasons for rejecting the credibility of the Appellant’s claim that that friend was in the Mojahedin and there is no basis for upsetting the Adjudicator’s determination in that respect.  It is not an important point in the determination. 

12.	We make two additional comments.  First, sound credibility findings cannot be upset by a few points of detailed criticism, let alone any which assume for their very force that the Adjudicator is wrong.

13.	Second, Mr Hussein said that he was hampered in dealing with the Adjudicator’s comments about the evidence, which may, as the Tribunal pointed out, have related to evidence given orally before her, by not having the Record of Proceedings and being unable to see what was said.  If an Appellant wishes to say that an Adjudicator had no evidence, written or oral, to the effect set out by the Adjudicator or had no evidence to support inferences which the Adjudicator drew, it is not for the Record of Proceedings to be produced through which an Appellant can then trawl for evidence.  It is for the Appellant to produce evidence, perhaps in the form of the advocate’s notes in order to show that something was not said or was misrecorded.  A Home Office Presenting Officer’s notes may be relevant to rebut such a factual contention.  The Record of Proceedings is not a primary evidential source for Appellants.

14.	We now turn to the substantive grounds.   Ground 2 that the Adjudicator erred in concluding that the Appellant might be prosecuted but not persecuted for his actions, as argued shaded into the claim in Ground 3 that the Adjudicator had failed to ask herself the relevant questions.  Those were whether there was a real risk that the Appellant would be imprisoned and a real risk that in prison he would be treated in a way which breached Article 3.  We point out that the question of the risk of a breach of Article 3 has to be determined on the basis of the Adjudicator’s findings of fact and not on the basis of the conclusions of the IAT in the determination of HHJ Slinger, which proceeds more on an assumption that the Appellant might well be imprisoned but for non political offences.

15.	The Adjudicator recognised that the Appellant would be questioned about military service, his departure and possibly about improper completion of military service certificates.  He could, but might not, receive imprisonment or a fine for these relatively minor offences.  Those are all perfectly sound conclusions. 

16.	We now turn the background evidence on the risk of ill treatment in prison in breach of Article 3.  The Appellant referred us to page 2/15 of the USSD Report for 2003 which referred to the execution in 2003 of two political activists associated with an outlawed party and to the torture of other opposition party activists.  There had been killings and disappearances of activist, investigative journalists and dissidents.

17.	Page 3 of that Report said:

“There were numerous credible reports that security forces and prison personnel continued to torture detainees and prisoners.  Some prison facilities, including Tehran’s Evin prison, were notorious for the cruel and prolonged acts of torture inflicted upon political opponents of the Government.  Common methods included 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 also reported beatings about the ears, inducing partial or complete deafness, and punching in the eyes, leading to partial or complete blindness.

Prison conditions in the country were poor.  Some prisoners were held in solitary confinement or denied adequate food or medical care to force confessions.  After its February visit, the UN Working Group on Arbitrary Detentions reported that ‘for the first time since its establishment, [the Working Group] has been confronted with a strategy of widespread use of solitary confinement for its own sake and not for traditional disciplinary purposes.’  The Working Group described Sector 209 of Evin Prison as a ‘prison within a prison’, designed for the ‘systematic, large-scale use of absolute solitary confinement, frequently for long periods’.”

17.	The US State Department Report also referred to much of the prison abuse occurring in unofficial detention centres run by the secret service and the military, and to significant overcrowding and unrest in prisons.

18.	In 2003 UN human rights officials had visited a number of prisons in Iran including Evin and had interviewed 140 “ordinary prisoners” and some of the political prisoners they had asked to see.

“The Working Group described the authorities’ co-operation as ‘on the whole positive’, although it noted problems with fulfilment of follow-up requests generated by the visit and disappointment over arrests carried out after the Group’s departure.   Following his November visit to the country, the UNSR for the Promotion and Protection of the Right to Freedom of Opinion and Expression noted that his delegation met with almost 40 dissidents, both in and out of prison.”  US State Department Report, p4.

We note that the severe problems which do involve a breach of Article 3 relate to political activists and political dissenters.  This distinction is borne out by other material.  The CIPU Report of April 2004 in part reflects the US State Department material and emphasises prison problems of overcrowding, risk of disturbances and the way in which drug related offences dominate the prisoner numbers.  It refers to the spread of HIV/Aids in prison.

19.	At paragraph 5.57 the CIPU Report says:

“The first UN human rights monitors to visit the country for seven years said on 26 February 2003 that Iranians suffer large-scale arbitrary detentions and some prisons operate outside the control of the judicial system.  Although the head of the five-member team examining arbitrary detentions said the authorities had cooperated fully with its requests, he raised concerns about unaccountable prisons, detainees being held without access to legal defence, violations of freedom of expression and other abuses. ”

It is to be noted that there is nothing about the UN finding evidence of torture, let alone torture in ordinary prisons or treatment which breaches Article 3 ECHR.

20.	Also of relevance to the way in which the offences might be seen was paragraph 5.60 of the CIPU Report:

“The penalty for draft avoidance in peacetime is an extra 6 months – 2 years service, and in wartime up to 10 years extra service or punishment at the discretion of the convicting judge.  However, new provisions on buying exemption from military service and dealing with desertion cases are said to have been enacted recently, extending previous practices, although not sanctioned by Khamenei.  Time still to be served and prison sentences imposed for desertion may now be bought off. ”

To our mind this shows that non completion of military service and improper dealing in military service completion certificates are not seen as either political offences or as serious offences.

22.	Mr Hussein referred us to the Amnesty International Report on conditions in 2002.  This dealt with arbitrary arrest, unfair trials, torture and judicial sentences of death and flogging in order to curb expressions of dissent by students, academics and journalists.  However reliable that picture and other references by Human Rights Watch support it, nothing in that material suggests that the Appellant would, if imprisoned, face torture or treatment which breached Article 3 in view of the nature of the offences for which he might be sentenced.

23.	In reality the background material shows that there is a clear distinction between political and non political offences in the way in which the offenders are treated, and ordinary offender conditions do not involve a real risk of torture or breach of Article 3.  The offences which the Appellant might be questioned about or suspected of committing are neither serious nor political.

24.	The Adjudicator found that he would be questioned and might be prosecuted and might be imprisoned but not that he would be.  But even if he were at a real risk of imprisonment, it is clear that there is no real risk of ill treatment.  In any event, viewed as a cumulative sequence of risk, it is nowhere near establishing a real risk of a breach of Article 3.

25.	This appeal is accordingly dismissed.  It is reported for what we say about prison conditions in Iran and the Record of Proceedings.

MR JUSTICE OUSELEY
PRESIDENT