Tribunal decisions

The decision

FA (Fresh Evidence) Iran [2004] UKIAT 00291

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 5th May 2004
Date Determination notified:
...29th October 2004...

Before:

The Honourable Mr Justice Ouseley (President)
Mr S L Batiste (Vice President)
Mr M J Griffiths

Between:

APPELLANT

and

Secretary of State for the Home Department
RESPONDENT

For the Appellant: Mr Huffer, instructed by Dicksons HMB Solicitors
For the Respondent: Mr J Gulvin, Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is an appeal from a determination of a Special Adjudicator, Dr H H Storey, promulgated as long ago as 30th September 1999. By that determination he dismissed the Appellant’s appeal against the decision of the Secretary of State to refuse him asylum. He was a citizen of Iran who arrived in the United Kingdom in August 1998 and claimed asylum because of a fear of persecution, as a result of his having abandoned Islam to become a Jehovah’s Witness. The Special Adjudicator did not find credible the crucial parts of his claim, which centred around his claim that the Iranian authorities had considered that he was an apostate from Islam.

2. The Special Adjudicator found that he had never been in trouble with the Iranian authorities for his religion, that he had never abandoned Islam and had never had a real interest in the Jehovah Witness faith. His reasoning was that the Appellant had married a Muslim woman in Cyprus where he claimed first to have become interested in becoming a Jehovah’s Witness; he would not have married a Muslim if he had been as interested as he had claimed to be in being a Jehovah’s Witness. She, as a Muslim, would not have married him because that was against her religion, as both of them would have known well. The Special Adjudicator commented:

“When questioned on this matter, the appellant said that in the eyes of his wife he was still a Muslim. In my view the truth was much more likely to be that he had never had any involvement with Jehovah’s Witnesses and that she knew that when she married him. I note in this regard that the appellant has not taken the opportunity afforded to him by this hearing to call his wife as a witness and have her testimony tested under cross-examination.”

3. He found unsatisfactory the explanation which the Appellant gave for going from Cyprus to Iran with his wife in 1997, after his brother was said to have warned him that people there were saying that he had changed his religion. The Appellant also gave evidence that he had been detained on at least two occasions but the Special Adjudicator pointed out that there were significant discrepancies between the account he gave of what questions he was asked and of how he was treated, in his interview and in answers to his written statement. There were also other discrepancies in detail. The Special Adjudicator concluded:

“However, in this case, I simply do not believe that this appellant has ever in fact taken a real interest in the Jehovah Witness creed nor do I believe that he has ever been or would ever be perceived as an unbeliever by anyone in Iran. If returned to Iran, I consider that he would be viewed in the same way as any other ordinary Iranian citizen with an equivalent immigration history.”

4. The Appellant sought leave to appeal to the Tribunal on the ground that there was further written evidence and witness statements which the IAS, which had represented him before the Special Adjudicator had advised him not to produce which should have been produced, and he also wished to call two further witnesses because he had not been aware that he could call witnesses. He was by now represented by Challinors & Dickson. The Deputy President granted leave saying:

“This matter merits further consideration. The solicitors who have entered this application will be aware that it it is not the Tribunal’s practice to consider evidence which could readily have been produced before the Special Adjudicator. The only reason given for its non-production amounts to an allegation relating to the Immigration Advisory Service’s conduct of the Applicant’s appeal and the Applicant will need to be ready to establish the truth of that application as a preliminary matter before the Tribunal.”

5. Before the appeal came on, the Deputy President, in response to a letter from those solicitors saying that they were proposing to call two witnesses, of whom it was not said that they were able to give any evidence about what had happened at the hearing between the IAS representative and the Appellant, said that the Appellant only had leave to give evidence himself and that would be confined to the preliminary issue as to whether the allegation against the IAS was correct. At the hearing, it was accepted by Mr Green of Challinors & Dickson that there was nothing in the IAS file which supported the Appellant’s version of events. The Tribunal declined to allow the Appellant to be called, saying that Mr Green:

“… told us, however, that although he had contacted the Immigration Advisory Service to obtain the file, he had not mentioned the Appellant’s allegation to them or sought to obtain their reaction to it. He told us also that there was nothing in the file to which he would be drawing our attention in support of the Appellant’s allegation. In the circumstances we declined to allow him to call the Appellant, as it seemed to us that we should be being asked to make a judgment on the Immigration Advisory Services’ professional conduct of the case on the basis of evidence which could only be partial. The new representative had had every opportunity to discover whether there was any merit in the Appellant’s allegations but had chosen not to do so, and had full notice that the allegation was to be considered as a preliminary issue but had not prepared to establish it. Although it may be that in certain circumstances the Tribunal will act in order to remedy incompetent or misconduct by representatives, it will not do so unless properly satisfied that the Appellant has actually been prejudiced by his former representatives.”

6. After the hearing but before the determination was sent out, further material arrived upon which the Tribunal commented as follows:

“Following the hearing of this appeal we have received a letter from the Immigration Advisory Service, enclosing a copy of a letter written to them on 13 January 2000 by Mr Green. Mr Green had written to the Immigration Advisory Service as follows:

‘The Immigration Appeal Tribunal requires to know why you have not submitted the two documents, … at the hearing before … the Special Adjudicator.’

As must have been perfectly clear to the author of that letter, that statement was not the truth. We required nothing of the Immigration Advisory Service. The statement implies a further untruth, that we had concluded that the Immigration Advisory Service had it in their power to adduce the documents in question. As we said at the hearing and have said again in this determination, we were not prepared to allow a retrial of this appeal on a bare allegation against the Immigration Advisory Service, when Mr Green had not even sought their view on the allegation. To write to them after the hearing misrepresenting what had happened at the hearing does not help the Appellant at all. So far as we are concerned, the matter was closed at the end of the hearing before us: it is right to say, however, that nothing in the letter from the Immigration Advisory Services gives any support for the Appellant’s allegations against them.”

7. It was accepted by Mr Green that there was no criticism which could be made of the Special Adjudicator’s determination on the material before him. There was no breach of natural justice, the Appellant had been represented throughout by representatives of his own choice and had lost his case on his own evidence.

8. This decision was challenged by way of judicial review and in the Court of Appeal, the decision of the Tribunal was quashed, on 14th June 2001. It said that the approach in R v IAT ex parte Aziz [1999] INLR 355 was correct. This case discussed the relevance of Ladd v Marshall [1954] 1 WLR 1489 to an asylum claim. Lord Denning had said at p1491:

“In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.”

9. Latham J said in Aziz:

“Both the applicant and the respondent agree that the decision in Ladd v Marshall is not determinative of the question which arises in asylum appeals.

In my judgment, they are right insofar as Ladd v Marshall requires the litigant to establish that the evidence could not have been obtained with due diligence. That would be an unjustifiably restrictive approach in this sensitive and difficult jurisdiction.

The second and third tests do, however, remain valid. The evidence cannot justify the grant of leave unless it is apparently credible and could affect the ultimate decision. The fact that it is tendered late is, however, a relevant consideration. There is a public policy interest in ensuring, so far as possible, that all relevant material is presented to the special adjudicator. Where an asylum seeker has been legally advised throughout, the Immigration Appeal Tribunal is entitled to look with scepticism at any new material submitted in support of a leave application, if it could have been obtained for the hearing before the special adjudicator. If it appears as though it is material which was withheld from the special adjudicator, although available, the Immigration Appeal Tribunal would be unlikely to allow it to support an application for leave. Even where the applicant has not been represented, the Immigration Appeal Tribunal is entitled to an explanation of why the material was not made available to the special adjudicator so that an informed decision can be made as to whether or not the applicant should be permitted to use it to support his application for leave to appeal. But where the evidence is credible and sufficiently cogent to be capable of affecting the ultimate decision, the Immigration Appeal Tribunal should be slow to decline to permit it to support an application for leave.”

10. Keene LJ said in this appeal:

“Nonetheless, finality in litigation is very important for obvious reasons and a party is not entitled to hold back relevant evidence at first instance and then produce it on appeal as a second bite of the cherry. For my part, I agree with the approach indicated in Aziz. Of course, as Latham J said in that case, the Tribunal is entitled to look with scepticism at new material which could have been adduced before the special adjudicator and it is entitled to an explanation as to why it was not put before him. But what it cannot, in my judgment, properly do is to focus entirely on that aspect and to pay no attention to the credibility of the fresh evidence or to the impact which, if it is credible, its receipt might have on the issues in the case. The reason for that is that very important and apparently credible evidence might otherwise be excluded from consideration, evidence which indeed might in some cases produce a different result on the appeal, solely because of the lack of any proper explanation for its non-production at the original hearing. That could sometimes lead to injustice and this is why the balancing exercise is required. It may often come down in favour of its exclusion where there is no proper explanation for the failure to produce at the initial state. That in itself provides no justification for departing from the balancing exercise.”

11. He concluded that the Tribunal had failed to consider the credibility of the proffered fresh evidence. Although the significance of the new material was limited and there could be doubts as to its credibility, it was not so obviously deficient that a Tribunal might not regard it as sufficient to outweigh the lack of an acceptable explanation for its earlier non-production. He recognised that the Appellant’s credibility might not be enhanced by the allegations made against the IAS. The IAT should reconsider its decision not to consider the further evidence.

12. Pill LJ thought that the conduct of the Appellant was close to being an affront to the processes of the Tribunal because there was no evidence that there had been a failure to advise in advance by the IAS, the concern expressed in the grant of leave about the evidence on the preliminary point had not been addressed, there was no explanation for the failure to produce satisfactory evidence as to what had happened and when at last the Appellant’s solicitors had written to the IAS, the letter had been less than frank.

13. There then followed a catalogue of listing problems. On 30th April 2002, at an adjourned hearing, the then President gave leave for the wife to be called to give evidence and had to adjourn the hearing to another date. After various other problems for which the Appellant is not to blame, the matter came on before the Tribunal on 15th December 2003 when again it had to be adjourned but the Appellant and his wife had attended to give evidence. Directions were given for the hearing to take place in February but that was adjourned shortly before because the Appellant had been in hospital, over Christmas it turned out, and his wife was to give birth at around that time. Shortly before the appeal come on this time, we were told that the wife would not be attending. We shall come to the reasons later. We rejected an application by the Secretary of State for an adjournment.

14. By this time, the fresh evidence which the Appellant wished to call had grown from that which featured before the Tribunal in 2000. We heard evidence from the Appellant himself which related to the reasons why evidence which he now wished to call had not been before the Special Adjudicator and as to the present position in relation to his beliefs as a Jehovah’s Witness. We received a number of statements, letters and other documents which we have considered. There was some fresh material relating to background conditions for apostates in Iran, but it was accepted that that could only become relevant and at a later stage, if we were to come to a view of the personal factual material which was favourable to the Appellant.

15. The approach towards the admission of fresh evidence which was not before an Adjudicator has moved on a little since the Court of Appeal ruling in this case. The case before us does not depend, at least at this stage upon any question of up to date country evidence, as was agreed, and concerns instead whether the further evidence undermines the adverse credibility findings. In E and R v SSHD [2004] EWCA Civ 49, it was held that the principles in Ladd v Marshall remained the starting point for the consideration of whether further evidence could be received upon appeal in asylum and human rights cases but that there was a discretion to depart from them in exceptional circumstances where the wider interests of justice so require. The failure of a party’s advisers to act carefully did not support any general departure from those principles.

16. The approach in that case is the one which we should now apply to the various pieces of evidence in this case. It remains the position, however, as Keene LJ pointed out in his judgment in this case, that it is not correct simply to require that an allegation of prejudice owing to professional misconduct be put to the professional in question, let alone proved, before the fresh evidence is examined. But even if such failings are proved, it does not follow that the evidence becomes admissible. That depends upon the application of the tests in Ladd v Marshall and the consideration of any exceptional factors.

17. It is the practice of the Tribunal to require such allegations to be put to the professional in question because it is so easy for allegations to be made without any support except that of the disappointed claimant, who may have been disbelieved and who may again be less than reliable. As Pill LJ pointed out, the failings of the Appellant and his new advisers were considerable in the light of the specific directions of the Tribunal, and a failure to put such allegations properly to the professional in question is bound to raise serious question of credibility as to the allegations. That is why the Tribunal expects that that will be put in to the representative in question and that any reply will be made available to the Tribunal. It is difficult to think of a sound reason why the allegation should not be put, although there may be exceptional circumstances.

The evidence which the representative allegedly ignored

18. It was alleged that two pieces of evidence were shown to the IAS lawyer representing the Appellant before the Adjudicator, but which the representative ignored. First, was a letter to the Appellant from M Georgiou who had known the Appellant in Cyprus. It contains very little that would not have been told to him by the Appellant and so added very little beyond that the Appellant had been studying the Bible with Jehovah’s Witnesses for about a year before he left for Iran. Second, was a letter with envelope and translation, from the Appellant’s sister in Iran, referring to government agents looking for the Appellant because he was no longer a Muslim and hoping that they would not see this letter.

19. The Appellant provided a statement as to what happened in relation to those pieces of evidence with the IAS representative. This was dated after the Tribunal hearing, but before its decision on the preliminary issue. A friend who had accompanied the Appellant to the hearing provided a very similarly worded statement of the same date. Each statement said that the two documents had been handed to the IAS representative by the Appellant, in the presence of the friend. Each said that the IAS representative had said to the Appellant that it was all rubbish but that he had a case strong enough to win anyway. The statements are silent as to the existence of a translation of the letter from the sister, as to the friend translating for the Appellant what the IAS representative said, and as to his being there as a witness himself. The straightforward reading of the statements is that the IAS representative spoke to the Appellant in English. There is no reference in them to the wife being a potential witness. Neither statement deals with the suggestion that the Appellant had two witnesses whom he would have wished to call, but that he did not know that he could; there is no suggestion that this was ever raised with the representative, although the grounds of appeal could be read as so saying.

20. After those statements had been sent to the IAS, the representative replied to the Tribunal. The IAS letter of 17th January 2000 was before the Court of Appeal but inexplicably was omitted from the bundles provided by Dicksons. Having found it in our files, we asked why it had not been included in the bundles and were told by Mr Huffer upon telephone instructions that previous counsel had advised that it be omitted. If that is true, as to which we make no comment, we regard it as astonishing that Dicksons did not disregard that advice, as they should have done.

21. The representative pointed out that he had a great deal of experience appearing for appellants and in receiving last-minute material. He is clear and emphatic that he was not handed any material and that he did not regard the case as strong at all, instead speaking to the Appellant about his concerns; in any event he would always have used corroborative evidence. He had written to the Appellant specifically asking for supporting evidence on 3rd August 1999, pre-dating the sister’s letter; he found it surprising that the Appellant had waited then until the end of September before allegedly handing over material which dated from July and early August 1999, but continued that he would still have “jumped for joy” at their receipt even on the date of the hearing.

22. The Appellant’s evidence to us was that he could not remember if he had told the representative that he wished to call witnesses, one of whom at least was present, and said that he only tried to obtain witnesses after he had lost. Later, he said that his friend had come as a witness and also as an interpreter; he then said that he had come as a friend and not as a witness; he then was not sure as to why he had not asked him to help as a witness: he did not want to bother him; he later denied saying that the friend had come as a witness. But he did say that his own English was not good although he understood some words. He alleged that he had told the representative about his wife but had been told by him that she was not necessary. In cross-examination, he said that he was 100 percent certain that he handed the documents to the representative and that he had spoken to him through his friend acting as interpreter. He said that the representative had not even accepted the documents.

23. Mr Huffer, for the Appellant, urged that we should be slow to disbelieve the Appellant; there was scope for misunderstanding; it was understandable that at the door of the court the representative would be reluctant to accept self-serving material from the family which had no professional heading and was of no great relevance and was untestable.

24. We do not believe what the Appellant had to say; his evidence was at odds with the earlier statement on this issue; it was vague and self-contradictory. There were omissions in it of important material such as whether the representative had asked for supporting material and why it came so late at the hearing. We see nothing to support the notion that an experienced representative would not have examined that material carefully. Although there are times when advice may be given that reliance upon a particular document is more likely to be damaging than helpful, that is not what is said in respect of these documents and it is not obvious that they would be damaging even if not of real help. We believe that the Appellant was lying. He lost his case and is now casting about in a disreputable way for some further opportunity to put in additional evidence. We do not believe him when he says that he did not know that he could call witnesses in the light of his being represented by the IAS, nor do we believe for one moment the Appellant’s assertion that the IAS representative had told him that it was not necessary to call his wife; this allegation emerged in 2002. It is simply not credible that such advice would have been given; her statement says that she had difficulty entering the country and was in Cyprus or Jordan at the time. These lies did not help his case in other respects and tended only to reinforce the unfavourable view of his credibility which the Special Adjudicator had reached.

25. Mr Huffer’s submissions also show that the material, even if omitted by professional misjudgement, could not have had a significant impact on the outcome of the case, in the light of the significant defects which the Special Adjudicator found in the evidence, not the least of which went to the Appellant’s credibility. On this basis, his appeal was hopeless.

Other evidence which was not put before the Adjudicator but which could have been

26. The next tranche of evidence which the Appellant sought to persuade us to admit consists of statements which could have been but which were not before the Special Adjudicator. The Appellant accepts that after the case was lost he sought that evidence so that he could appeal further. Some of those statements contain material which could not have been before the Special Adjudicator, which we shall deal with in the next section.

27. There are a number of statements dated 18th or 19th October 1999, shortly after the promulgation of the Special Adjudicator’s determination. This is consistent with the Appellant deciding to gather the evidence after he had lost. M Georgiou’s statement repeats his earlier statement and it adds little. Mr Davies, Presiding Overseer of the Newcastle-under-Lyme Central Congregation of Jehovah’s Witnesses, provided a statement in response to a request (no date given). He had met the Appellant and had answered his request for assistance by putting him in touch with a Farsi speaker and Elder, Mr Nassehi. He said, as at that date, that the Appellant attended local lessons and Farsi-speaking meetings in Manchester. He wrote of the Appellant’s genuine interest in being a Jehovah’s Witness and in being baptised soon, adding that the Appellant spoke to people about his beliefs. Mr Nassehi wrote mostly what must have come from the Appellant himself and so adds little. Despite the Appellant’s lack of English, he met with them and also attended Farsi meetings in Manchester. Mr Nassehi also wrote of the Appellant’s sincerity.

28. Neither of the latter two statements dealt with the wife’s views or the relationship with non-believers (which the Appellant himself dealt with), notwithstanding the adverse points made in that respect by the Adjudicator.

29. The friend who attended before the Adjudicator provided a statement which predates the one he gave describing what transpired, allegedly, with the IAS representative, and is surprisingly silent on those matters. It said that when the friend had been in Iran in early 1999, he had been asked by the Appellant’s parents to tell him not to return because word was spreading that he had become a Jehovah’s Witness and they were fearful of being blamed.

30. Mr Laksari, a local shopkeeper originally from the same town in Iran as the Appellant, stated that he knew, but the source is unstated, that the Appellant had kept up instruction in the beliefs of Jehovah’s Witnesses and intended to be baptised soon. He did refer to the conflict between the Appellant and his wife over religion, saying that it “seems that his wife no longer wishes to be married to him if he persists in this faith”. He added that the Appellant’s attitude was that if his wife loved him she would also convert to his faith. As Muslims, however, he had turned away the Appellant’s attempts to interest him in being a Jehovah’s Witness. Most of the other points were ones which he could only have been told either by the Appellant or by his wife, including that neither of them had any idea that his marrying a Muslim was contrary to Islam. (The wife’s statement, though not his, states that she did not know of his religious views until after they were married.) Mr Laksari continued, stating that the Appellant’s wife no longer wished to spend her life with him and that he was willing to forego her for the sake of his religion. (That is not quite how matters turned out.)

31. Mr Laksari produced a further statement in December 1999, describing it as within his personal knowledge that the Appellant was a devout Christian and was also known to the authorities in Iran, but that he would stick to his beliefs at all costs. No means of acquiring this personal knowledge was given. Mr Huffer wished to withdraw reliance on these statements, as they added nothing, he said. They do contain material, which is of interest in relation to the enthusiasm, which it is said the Appellant feels for his religion to the point of accepting the breakdown of his marriage. Mr Huffer’s wish reflects more of a recognition that the material did not assist, because it was so clearly exaggerated and not borne out by the continued marriage and additional children which it had led to, coupled with the evidently diminishing interest which the Appellant had in being a Jehovah’s Witness. It served instead to illustrate how far the unreliability of the Appellant’s supporting evidence had spread.

32. Mr Nassehi and the friend provided further statements in December 1999, the latter again being silent as to what had happened with the IAS representative. They added little to what had already been stated to them.

33. These statements were all obtained within a short time of the Adjudicator’s determination. There is no reason why they could not have been provided to him. We do not accept that the Appellant did not know that he could call witnesses or provide statements. He had not asked them until afterwards, he said, because he only asked them to give evidence when he had lost. He gave contradictory answers over his friend as a witness, but if he had not asked him, that is the Appellant’s fault. We do not accept that he would not have raised the issue with the IAS or they with him. As we have said, we reject his claim that the IAS said that the wife’s evidence would not be necessary. All this evidence fails the first test in Ladd v Marshall. We shall deal with its apparent credibility and significance when we have considered all the evidence which the Appellant wished us to consider, as well as whether there are any special circumstances which would warrant its reception.

The 2002 statements

34. As the first substantive Tribunal hearing neared in April 2002, yet further statements were produced. The first was a third statement from the Appellant himself; it adds very little to the statement which was before the Adjudicator and much of what it adds could have been before him. He refers to a nasty assault (para 4, p86 Appellant’s bundle) by immigration officers when he returned in 1997, which he felt had to do with his being a Jehovah’s Witness. He gives no particular reason for his feeling that that was why he received such treatment. He gives no explanation for the surprising omission of any reference to that assault from his first statement, (p24, Appellant’s bundle). There was no reference to his wife being unavailable to give evidence before the Special Adjudicator, notwithstanding what the latter had to say about her absence as a witness. Nor was there any reference, by way of alternative explanation, as he later gave to us, that the IAS representative had said that she was not a necessary witness.

35. What could not have been before the Adjudicator was the position in relation to his progress as a Jehovah’s Witness over the intervening time. He makes no reference to family or marital difficulties, but he said that he had still not been baptised because he had still not completed his studies because of language and his immigration difficulties.

36. His statement introduced three documents: a letter from Iran from the friend there who had helped him leave in 1997, saying that the Appellant’s life was in danger there; another letter from his sister saying that death awaited his return; and a “Warning Notice” dated 11th August 2001, faxed on 31st March 2002, requiring him to attend for trial in August 2001 on charges as a Jehovah’s Witness.

37. The first letter had been requested by the Appellant, but the requesting letter was not produced. This friend, notwithstanding the help which he had given the Appellant to leave and which could have occasioned questions as to how he knew the Appellant or was interested in him, had talked about the Appellant with old friends in the Sepah Pasdaran who had ascertained that the Appellant’s name was still on the list at Teheran Airport and that he would still be arrested if he returned. The Appellant gave no evidence of brutality at the immigration office until his second statement. His evidence had been of arrest and ill-treatment at the hands of the Sepah Pasdaran, but who had nonetheless released him on payment of a bribe.

38. The sister’s letter was in the same terms as her earlier one.

39. The Warning Notice only came to his attention, he said in evidence to us, when it was posted to him. It was pointed out that it had been faxed to him; he said that he had asked for the original but that had got lost in the post. No recipient fax address was available; the Appellant said that he had borrowed the machine. In cross-examination, he said that he knew about the Notice from telephone calls which he made every ten days or so to his family in Iran. He explained that the delay in informing him about the Notice arose from the fact that his family had not wanted to worry him and, contradictorily, that they all thought that some other family member had told him. Mr Huffer recognised the Tribunal’s approach to the genuineness of documents involved a consideration of their reliability in the context of all the evidence as a whole. The CIPU Report for October 2003 in paragraph 5.37 referred to an Embassy report that there were freelance typists outside every Court who could produce most types of legal and court documents very cheaply, which were unlikely to have security markings or uniformity in format.

40. The Appellant’s wife also produced a statement in March 2002. This differs from the Appellant’s first statement in saying that she first found out about his involvement in and adherence to the Jehovah Witness’ faith when she asked why he was being arrested and ill-treated in Iran when they visited there in 1997 after they were married. His first statement said that she had all of this explained to her before they were married and she had understood. There is no room for misunderstanding here; one or other is lying. She had lost contact with him for some months when he was hiding in Turkey. They had experienced matrimonial problems because each was trying to persuade the other to the merits of their respective religions; he does not speak of that. She accuses the IAS of doing nothing to help, of rejecting her as a witness but also saying that she was in Cyprus or Jordan at the relevant time because of visa difficulties in entering the United Kingdom. Some of what she says depends upon her husband. We do not accept that she had been rejected as a witness and that explanation is not consistent generally with her being out of the United Kingdom and unable to give evidence anyway. It was not in her husband’s statement, although he said it in evidence to us. She had only stayed in the United Kingdom since the birth of her second child.

41. The friend who attended the hearing also provided a third statement in March 2002 which provided a little more detail about his friendship with the Appellant, a boyhood friend with whom he had re-established contact when they were both in the United Kingdom. He explains that the Appellant had told him he had left Islam because he did not like fanatical Islam. It adds nothing of substance save that the Appellant’s family were still being questioned about the Appellant.

42. Mr Nassehi provided another statement saying that the Appellant had now stopped going to Manchester and went instead to meetings at Mr Nassehi’s house. Divorce had been threatened after the birth of the second child and this had led to an end to that association, though the Appellant continued with his readings.

43. Mr Davies’ next statement, of April 2002, said that he had not met the Appellant for eighteen months, but confirmed that the association had ceased because, he said, of opposition from the wife, though contact with Mr Nassehi continued. A Ms Egerton, who said that she had known the Appellant since 1998, wrote that she had seen him being instructed in the faith and had discussed it with him.

44. There was also an undated letter from Mr and Mrs Mohammed who were practising Muslims. They had known the Appellant for three years, spoke of his commitment and of the tensions which that had caused with his wife but said that she was willing to accept that he should be a Jehovah’s Witness. This seems at odds with what Mr Davies and Mr Nassehi had to say about her opposition.

45. The final evidence in this context is the oral evidence of the Appellant himself, to which we have already made some reference. He had resolved past tensions with his wife, with whom he now had three children, on the basis that each would follow their own religion. He said nothing else about how this was seen by either religion, because he had not asked any Witness or Elder about it although he was aware that a Witness could not marry a non-Witness. He talked about Jehovah’s Witnesses to his work colleagues and others and continued to believe strongly in this faith. But he had still not been baptised because he had still not finished his studies as a result of having to work day and night.

46. There was very considerable confusion in his evidence about what contact he had with the Jehovah’s Witnesses and where, a confusion which was not attributable to the questions but to the unreliability of the answers. He still seemed at one point, in the teeth of other evidence to say that he had continued going to Manchester until late 2003. Eventually, he seemed to settle on his last attendance at a meeting as being some seven or eight months previously and that he had not been a regular attender after 2002; he had last been to Mr Nassehi’s house meetings in March 2002, and had been some ten to fifteen times in the last two years.

47. He explained what appealed to him about the faith and a little of what he understood of its beliefs. It was not very much for all his years of study and his asserted commitment to a faith which might cost him so dear; and its paucity impelled Mr Huffer to add something in his submissions. But we were not seeking enlightenment but rather to gauge the depth, or shallows, of the Appellant’s knowledge. One thing that did attract him, apart from the believed lack of a Hell, was the refusal of blood transfusions because of the limit which that placed on transmitting diseases. We did not, however, find that his knowledge of that well-known facet of the beliefs of Jehovah’s Witnesses had translated itself into action, for when he underwent surgery recently he had made no arrangements to prevent such a transfusion, nor had he discussed it with the surgeon or did he carry a card refusing such treatment.

48. The Appellant’s wife was not present on this occasion, although she had been present at the earlier adjourned hearing. He said that he could not afford the alleged £300 train fare and could not find someone to look after the young children so as to allow them to travel by bus the previous day. He had only sought a ticket from NASS for himself. So, despite what the Adjudicator had said, she had stayed behind. There was no other evidence as to the efforts being made through the solicitors to obtain her presence. Mr Huffer said that no adverse inferences should be drawn in those circumstances. The Appellant had been honest in his evidence about his faith and if he had wanted to exaggerate he could have done so; he had been honest about his wife’s views.

Conclusions

49. We have already said that the evidence in the October and December 1999 statements fails the first test in Ladd v Marshall. The only material in the later statements which does not also fail that first test is that which relates to the progress of his religious activities, his relationship with his wife, and the current view of him in Iran including the Warning Notice. His wife’s statement for the most part is not new but adds a little about what the IAS is said to have said, although that should have come from the Appellant to whom it was said.

50. The third test in Ladd v Marshall relates to the apparent credibility of the evidence. We did not accept the evidence of the Appellant himself, the critical evidence, as apparently credible. We have said that he lied about what happened between him and the IAS, not just over the two documents allegedly handed to the representative, but also over whether he was not told that he could call witnesses and yet that his wife was said to be unnecessary as a witness. He did not raise these issues in his written evidence. He provided a third statement in which he added detail which he could not have forgotten about: an assault at the immigration office which was not in his first evidence. He contradicts his wife about when she knew that he was a Jehovah’s Witness; it seems on her evidence to have been known to everyone but her. But it is impossible for him to promote her as a witness of truth without damning himself as a liar. He is silent as to any discussion with Elders about what must have been a tense aspect of the marriage, if he is to be believed, given that he knew or must have known from any studies that there are rules preventing a Witness marrying a non-Witness; the history of his involvement is not one of increasing commitment but of diminishing involvement and one which over the years never reached its climax in baptism; he does not go to meetings now and has not been a frequent attender for rather longer. His knowledge of the distinctive tenets of the faith was slight for all his studying, and his actual adherence to any marked by non-observance of rules in relation to marriage and indifference to one of the few he could remember, the prohibition on blood transfusions.

51. We did not think that in the light of what the Adjudicator had had to say about the absence of his wife as a witness that the asserted cost and difficulties of her attendance were persuasive reasons for her absence, but since she had attended on an earlier occasion we did not draw adverse inferences from her absence this time. It is simply the fact that through her absence she has not offered the support which she might have done to her husband’s evidence, although cross-examination about the timing of her knowledge of his religious change, her attitude towards it and the effect which that had had in diminishing his enthusiasm for the time-consuming and disruptive attendances could have proved illuminating without advancing his cause. Her absence before the Special Adjudicator would also have called for investigation. Any more that she had to say would be viewed critically in the light of our unfavourable assessment of his evidence. There are significant differences between the two in a number of areas, although she would have offered support to his claim to have had an interest in the Jehovah’s Witness faith.

52. The evidence of Mr Davies is apparently credible in showing that the Appellant had at least an ostensible interest in the faith in 1999 and had done some studying. But it also shows that little had happened in the eighteen months preceding the March 2002 statement and has not been updated. The evidence is therefore of little significance looking at the case now. He is silent about how he judged the genuineness of the Appellant in his first statement, and how his views stand with the Appellant’s own evidence about the bar on marriage to those of different faiths.

53. Mr Nassehi’s evidence offers support for the ostensible interest which the Appellant had in the faith, and refers without any supporting detail to his sincerity. The third statement is apparently credible in showing that the Appellant had gone to meetings at his house but that had stopped by March 2002, indeed following the earlier birth of the second child. Nothing further has been provided and in the light of the Appellant’s own evidence as to his lack of attendance at meetings, it supports a considerable diminution of whatever interest he had had. It is not significant in the context of this case.

54. We did not find the statements of Mr Laksari apparently credible; they were considerably over-egging whatever it was that the Appellant himself had to say, and we are not surprised that Mr Huffer did not wish to rely on them. Even if apparently credible, they can hardly be said to be of potential significance for the case. The Mohammeds’ letter also struck us as difficult to accept, in view of the contradictions between what they had to say about the wife’s attitude and what was said by Mr Davies and Mr Nassehi, and what the Mohammeds had to say about his commitment contrasted with what those other two had to say as well.

55. Mr Georgiou’s evidence about the studying in Cyprus is not of significance even if perhaps true to an extent; we note Mr Huffer’s submissions as to why the IAS might have not thought it weighty. We have already said that we do not accept as true the evidence which the friend gave as to what transpired between the Appellant and the IAS and do not see a sound basis for treating him as more reliable when he refers, briefly, to being told in Iran to warn the Appellant against returning. The Warning Notice, the timing of its sending and the delay in drawing so allegedly conclusive a document to the Appellant’s attention despite his regular phone calls, his explanation for that, the absence of the original which was sent by post, and the evidence of the CIPU Report about the ready production of false court documents, preclude it being seen in the context of all the other evidence as anything other than unreliable, applying the approach of Tanveer Ahmed [2002] UKIAT 439, [2002] Imm AR 318. The letter from the friend in Iran does not add to the picture and does not justify being treated as apparently credible or significant.

56. We have concluded that the evidence does not satisfy the cumulative Ladd v Marshall tests. Almost all except the updated position in relation to his beliefs could have been available to the Adjudicator. We do not regard the Appellant as having been truthful to us and that reinforces the adverse conclusion which the Adjudicator reached. Much of the new material which the Appellant says supports his appeal and justifies a remittal for the whole case to be examined afresh is not apparently credible in its own right, but is vague, inconsistent, fails to deal with obvious questions, is of unexplained source and dubious value. There is very little that would be of significance. The comment of the Adjudicator that the Appellant had shown no real interest in the Jehovah’s Witness faith in Cyprus remains sound. None of the material casts significant doubt on the Adjudicator’s rejection of the Appellant’s account of what happened to him in Iran in 1997.

57. The subsequent interest in being a Jehovah’s Witness in the United Kingdom, which was not before the Adjudicator in the way the later evidence portrays, might have led to a tempering of those comments as a result of the statements from Mr Davies and Mr Nassehi. However, those cannot now be seen as of significance, in view of the passage of time and the way in which the ostensible interest has diminished rather than progressed. With that hindsight, it casts doubt upon the reality of any interest which they may then have perceived. The evidence of the Appellant himself did not assist him in that regard.

58. There is no sound evidence to support the claim that whatever modest interest he had in that faith in the United Kingdom continues, or that he would seek to continue it at any risk to himself were he returned. We do not accept that the later material from Iran is apparently credible or significant. None of the subsequent material is said to have been based on any additional information about his attendance at meetings in the United Kingdom. The later material reflects a continuation of the position in 1997, which the Adjudicator did not accept, which conclusion is not disturbed by evidence of later activities. Nor is the Appellant’s case up to that point significantly reinforced by any new material. There is nothing to suggest a new, even if erroneous, basis upon which the Iranian authorities would now perceive him as an apostate.

59. We see nothing in this case which would warrant the evidence being received in the interests of justice. Rather, it illustrates the dangers in gathering evidence after a case has been lost, and of unfairly blaming failure on what was a competent representative.
60. This appeal is dismissed. This case is reported as an illustration of the Tribunal’s approach to fresh evidence on a pre 9th June 2003 Adjudicator’s determination.

MR JUSTICE OUSELEY
PRESIDENT