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PETITION OF MZ FOR JUDICIAL REVIEW OF A DECISION OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT


Submitted: 13 July 2017

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OUTER HOUSE, COURT OF SESSION

[2017] CSOH 104

 

P260/17

OPINION OF LORD WOOLMAN

In the Petition of

MZ

Petitioner

for

Judicial review of a decision of the Secretary of State for the Home Department

 

Petitioner:  Haddow;  Drummond Miller LLP

Respondent:  MacGregor;  Office of the Advocate General

13 July 2017

The Facts

[1]        The petitioner is a national of Iran.  He entered the UK on 11 April 2015 and claimed asylum on the same day.  His claim for asylum was founded on the fear of persecution for his imputed political opinion.  This was on the basis that he had been arrested on suspicion of spying at an Iranian military installation.  The Secretary of State refused his claim on 12 August 2015.

[2]        The petitioner appealed to the First‑tier Tribunal (“FTT”) and the hearing took place on 22 July 2016.  Shortly beforehand, the petitioner amended to include a second element for his claim.  It was based on his sur place conversion to Christianity.  Both the petitioner and respondent were happy for this element of the claim to be determined by the FTT without a decision first being made by the respondent.

[3]        The FTT disbelieved the petitioner’s account of having been arrested as a suspected spy.  It was not satisfied that the petitioner was at risk on this basis.  It also held that the petitioner was not a genuine Christian convert.  No appeal was taken against the FTT decision.

[4]        The petitioner’s solicitors instead made further representations on his behalf under Rule 353 of the Immigration Rules.  The respondent rejected those representations by letter dated 23 December 2016.  The present petition seeks judicial review of that decision.

 

The Issue

[5]        The central issue is whether the petitioner’s claimed conversion to Christianity is genuine.

 

The FTT

[6]        Before the FTT the petitioner lodged letters from several persons who supported his claim.  They were each connected either with the Tron Church or the Upper Room Church in Glasgow.  These are the two churches where the petitioner has worshipped.  Each supporter held a leadership position or a position of responsibility within their church.  Each stated their belief that the petitioner had converted to Christianity and was a genuine adherent.

[7]        The FTT judge heard evidence from the petitioner and from one supporter, Douglas Hamilton.  Mr Hamilton has been an elder of the Tron Church since 1987 and has been part of its management team since 2007.  In his testimony, he set out the vetting procedures applied by the church to ascertain whether someone has genuinely converted to Christianity.

[8]        In its judgment, the Tribunal held that all the authors of the letters genuinely believed that the petitioner was a committed Christian.  It also, however, made adverse credibility findings about him.  Put short they related to (a) his denial of the record taken at his asylum interview on 18 May 2015 that he was not religious;  (b) his failure to inform the respondent of any new grounds until shortly before the hearing despite formal notices asking him to do so;  and (c) his failure to provide a reasonable explanation of why he had disposed of his passport.  The Tribunal also took into account that the petitioner led no evidence of any discussions he had had with his wife in Iran about his religious conversion or her reaction to that.

[9]        The Tribunal concluded that the petitioner had deliberately set out to convince others that he was a genuine Christian in an attempt to bolster his asylum claim.  It made an express finding that he was not a genuine Christian convert.

 

Further Representations

[10]      As I have already mentioned, the petitioner’s solicitors made further representations on his behalf.  They produced nine letters of support with their letter of 28 November 2016.  Seven came from individuals who had previously provided letters.  The other two letters came from:  (a) Rev Dr William Philip, the senior minister of the Tron Church, and (b) Eric MacDonald, an elder of that church.  All the letters attested the writers’ belief in the genuineness of the petitioner’s conversion.  The Rev Dr Philip stated:  “There is perhaps no member of my congregation I would vouch for more strongly as to the evidence of a living faith in Christ”.

 

Rule 353

[11]      The representations were brought under Rule 353, which provides:

“When a human rights or protection claim has been refused … the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i)         had not already been considered; and

(ii)        taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

 

[12]      Accordingly, the respondent had to make two decisions.  First, whether to accept the further submissions.  Second, if rejected, to determine whether the submissions amounted to a fresh claim:  Dangol v Secretary of State for the Home Department 2011 SC 560.

 

The Decision Letter

[13]      The respondent rejected the further representations at both stages.  The decision letter is a comprehensive document citing relevant authority.  Its key findings can be summarised as follows.  (i) The decision of the FTT is the starting point;  (ii) The representations made on behalf of the petitioner do not address the finding that he “convinced” the members of his church that he was a Christian convert;  (iii) The new evidence is of a similar nature to that available to the FTT.

[14]      In a key passage the decision letter states:

“the members of the Tron Church are entitled to their opinion however little evidential weight is attached to these letters in substantiating your claim that you are a genuine Christian convert. They are considered to be self-serving…[I]t is not accepted you have demonstrated evidence that you are a genuine convert.”

 

[15]      The letter concludes by stating that the respondent does not accept that the further submissions would have a realistic prospect of success before another FTT.

 

Grounds of Challenge

[16]      The petitioner contends that the decision is unfounded, perverse and irrational.  He focusses on the use of the terms “little evidential weight” and “self‑serving” as demonstrating that the respondent failed to apply “the most anxious scrutiny” to the representations:  R (Bugdaycay) v SSHD [1987] AC 514 at 531G.

 

Decision

[17]      I see no merit in the submission that the respondent should have accepted the new letters as relevant further submissions leading to the grant of asylum.  The first branch of Rule 353 is directed toward cases where the objective situation has radically changed.  An example would be a change in Country Guidance.

[18]      Turning to the second stage of the test, I am entirely satisfied that the new letters were not “significantly different” from the material previously considered.  They simply reiterated the authors’ belief that the petitioner was a genuine adherent of the Christian faith.  It is not appropriate to compare them with opinion evidence given by experts in a specialist field.  The period in which they observed the petitioner’s religious practices after the issue of the Tribunal decision does not change the character of their evidence.

[19]      In any event there is no realistic prospect of success.  A second FTT would be bound to accept the adverse credibility findings of the first FTT:  Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702;  affirmed in Djebbar v Secretary of State for the Home Department [2004] EWCA Civ 804.

[20]      That is enough to decide this case.  If the new material is not “significantly different”, the respondent requires to go no further:  WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph [6].

[21]      I wish, however, to add that I do not accept the criticism levelled at the two terms used by the respondent in the decision letter.  She was entitled to reach the view that the new letters added “little evidential weight”, standing the quality of the evidence evaluated by the FTT.  Mr Haddow accepted that the original letters were themselves of considerable weight.  Similarly the term “self‑serving” was appropriate, having regard to the finding in fact by the FTT that the petitioner had deliberately set out to convince others that his conversion was genuine.  The expression is a “protean” one that takes colour from its context:  R (SS) v Secretary of State for the Home Department [2017] UKUT 164 (IAC), at paragraph [30].  It was not the determinative part of the decision:  HA (Afghanistan) v Secretary of State for the Home Department [2010] CSOH 74 at paragraph [14]. 

 

Conclusion

[22]      I shall sustain the respondent’s first and third pleas‑in‑law, repel the petitioner’s pleas and refuse the Petition.

[23]      Counsel agreed that expenses should follow success.  They also agreed that in the event of a finding in favour of the respondent, I should find the petitioner liable as a legally aided person and modify liability to nil.  I shall pronounce those orders and make an order for anonymity in respect of this case.