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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 97
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P603/07
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OPINION OF LORD MACPHAIL
in the Petition of
S D
Petitioner;
for
Judicial Review of
a decision by the Secretary of State for the Home Department
_________
ญญญญญญญญญญญญญญญญญ
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Petitioner: Melvin-Farr; Allan McDougall
Respondent: A.F. Stewart; Office of the
Solicitor to the Advocate General
12 June 2007
[1] This
is a petition for judicial review of a decision by the Secretary of State for
the Home Department to refuse to treat submissions made on the petitioner's
behalf as a fresh claim for asylum. The petition, as amended without objection
at the Bar at the first hearing, seeks reduction of the decision letter to that
effect dated 28 December 2006
(no. 6/1 of process). The Secretary of State is the respondent. At the first
hearing the respondent moved the Court to dismiss the petition.
[2] The
history of the matter is as follows. The petitioner is a national of Sri Lanka.
He entered the United Kingdom
on 4 April 2002 using a
valid Sri Lankan passport and was granted six months' leave to enter. He then
claimed asylum on 22 February
2003, but his application was refused on 28 April 2003. He appealed against that decision,
but his appeal was refused by an Adjudicator on 26 August 2003 (no. 6/5 of process). Shortly stated, the
petitioner claimed that he had been persecuted in Sri
Lanka for political reasons and that he had
a well-founded fear of persecution if he were to return. The Adjudicator did
not find him to be a credible witness and did not believe that the picture he
had presented of his life in Sri Lanka
was accurate. Leave to appeal was refused on 21 November 2003.
[3] By
a letter dated 18 December 2006
(no. 6/2 of process) solicitors acting for the petitioner sent to the Home
Office various documents, which they described as fresh evidence, which had
come to light and showed that the petitioner was still in severe danger. They
submitted that that information amounted to a fresh claim. On 28 December 2006 that
submission was rejected in the letter written on behalf of the respondent which
the petitioner now seeks to reduce.
[4] There
was no dispute as to the law. The relevant rule is rule 353 of the Immigration
Rules (HC 395, as amended). It provides in part:
"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."
The decision letter accepted that
the material submitted by the petitioner's solicitors had not already been
considered. The issue accordingly was whether its content satisfied
sub-paragraph (ii).
[5] The
petitioner's counsel cited a number of authorities, but it is sufficient to
refer to WM (DRC )v Secretary of State for the Home Department [2006]
EWCA Civ 1495, a recent decision of the Court of Appeal, where the earlier
authorities are noticed and the law is authoritatively stated in the leading
judgment by Buxton LJ at paragraphs 6 to 11. The court considers the proper
role of the Secretary of State, and of the court in its supervisory capacity,
in relation to failed asylum applicants who produce new material that is said
to ground a "fresh claim". As to the task of the Secretary of State, first,
"the question is whether there is a realistic prospect of success in an
application before an adjudicator, but not more than that." Second, "the
adjudicator himself does not have to achieve certainty, but only to think that
there is a real risk of the applicant being persecuted on return." Third, the
consideration of all the decision-makers (the Secretary of State, the
adjudicator and the court) "must be informed by the anxious scrutiny of the
material that is axiomatic in decisions that, if incorrectly made, may lead to
the applicant's exposure to persecution." As to the task of the court when
reviewing a decision of the Secretary of State as to whether a fresh claim
exists, the court must address the following matters. First, has the Secretary
of State asked himself the correct question: "whether there is a realistic
prospect of an adjudicator, applying the rule of anxious scrutiny, thinking
that the applicant will be exposed to a real risk of persecution on return."
Second, has the Secretary of State satisfied the requirement of anxious
scrutiny? "If the court cannot be satisfied that the answer to both of those
questions is in the affirmative it will have to grant an application for review
of the Secretary of State's decision."
[6] The
petitioner's counsel pointed out that it was also said in WM (DRC) that the test the application had to meet before it became
a fresh claim was a modest one; and that the adjudicator's finding as to the
applicant's credibility may be of little relevance where the new material does
not emanate from the applicant himself. Here, said counsel, the writer of the
decision letter had ignored the following matters. First, he had disregarded
documents described as "two police reports and four letters". The
decision-maker explains in the letter he has dismissed them because it is not
clear whether they are translations or copies or both, and they have come from
an unknown source. The petitioner's counsel did not refer me to these
documents. The decision-maker's approach appears to me to be perfectly rational.
While the onus of proof on the petitioner was not high, it was for him to
establish the provenance of the documents submitted, and it was within the
decision-maker's discretion to disregard them if he failed to do so.
[7] Secondly,
the petitioner's counsel referred to two news items from the Internet which, he
said, had not been sufficiently taken into account. After some prompting from
the Bench, he identified them as pages 21 and 46 of no. 7/1 of process. They do
not refer to the petitioner. The first reports a statement by a United Nations
official on 13 November 2006
that Sri Lankan government security forces were recruiting as soldiers children
of 13 and 14 years of age who were "kidnapped from villages in the East." The
second is a press release from the British High Commission in Colombo
dated 9 November 2006 which
refers to an incident the previous day "in which Sri Lankan armed forces
artillery fire killed and injured civilians in eastern Sri Lanka." The decision-maker points out that there is
nothing to show that the persons the petitioner says he feared when he left Sri
Lanka were behind any of the acts reported; and further, that the petitioner's
last home address given to the Immigration Service was not in the east but on
the west side of Sri Lanka which, according to the material submitted, had seen
very little civil conflict. These observations appear to me to be comments
which the decision-maker was entitled to make and to be entirely rational and
comprehensible.
[8] No
other specific criticisms of the contents of the decision letter were
attempted. Counsel for the respondent nevertheless carefully took me through it
and demonstrated that the decision-maker had correctly directed himself in law
and had properly considered all the material submitted by the petitioner's
solicitors. Counsel submitted that the decision letter satisfied the
requirements relating to the giving of reasons in this field (Singh v Secretary of State for the Home Department 2000 SC 219 at
222H-223C). I accept that submission. Counsel also referred me to PS (Ltte - Internal Flight - Sufficiency of
protection) Sri Lankan CG [2004] UKIAT 00297, a country guidance decision
by the Immigration Appeal Tribunal. At paragraph 71 the Tribunal states that
those whom the LTTE has on the objective evidence targeted in Colombo
since the ceasefire "have all been high profile opposition activists, or those
whom they would see are renegades or traitors to the LTTE." It adds, "[ . . . ] what seems to us quite
clear on the background evidence is that there is no arguable basis for saying
that the Sri Lankan state does not provide a sufficiency of protection to the
generality of Tamils having a localised fear of the LTTE in their home area who
do not reach a similar high profile."
The Adjudicator in his determination of 26 August 2003 did not believe that the petitioner was a
leading political figure (paragraph 15), and that finding was not challenged
before me.
[9] In
my opinion, accordingly, there is no substance in the criticisms of the respondent's
decision. I am satisfied that the correct question was asked, and that the
requirement of anxious scrutiny was satisfied. I shall therefore dismiss the
petition and reserve all questions of expenses.
