JR/06869/2016
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The decision
IAC-FH-LW-V4
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING
JR/6869/2016
Field House,
Breams Buildings
London
EC4A 1WR
2 May 2017
The QUEEN
(ON The application OF)
Aghil [B]
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE allen
- - - - - - - -
Ms M Thirumaney, instructed by Shervins Solicitors appeared on behalf of the Applicant.
Mrs J Gray, instructed by the Government Legal Department appeared on behalf of the Respondent.
- - - - - - - - - - - - -
ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
- - - - - - - - - - - - -
JUDGE Allen: This application for a judicial review is brought with the permission of Judge McGeachy following an oral permission hearing on 16 November 2016. In his application the applicant Mr [B] challenges the Secretary of State's decision of 21 March 2016 refusing to accept that his further submissions together with the previously considered material amount to a fresh claim for asylum and human rights.
1. The applicant came to the United Kingdom in 2006. He remained on a student visa which was renewed periodically but had no leave after expiry of the visa on 30 September 2011. Subsequent applications for leave to remain as a student were refused.
2. He claimed asylum on 20 March 2013 and this was refused on 9 April 2013 and a subsequent appeal was dismissed. He was appeal rights exhausted on 27 June 2013.
3. His asylum claim made at that time was based on his father being part of a political group and having expressed his views on the treatment of the Ahwazi Arabs by the Iranian authorities. This caused the applicant to become interested. He said his father was arrested and he himself had started a Facebook page in 2007 in his own name but changed it to Ahwaz Ahwazi in February or March 2013. He claimed to have posted from 2010 onwards about the Ahwazi people.
4. The judge found that the appellant had not produced documentary evidence of his Facebook activity from 2010 and that this was relevant to his credibility. He had no documentary evidence to show on Facebook that ideas had been exchanged between him and his Facebook friends. The judge did not accept that the appellant had exchanged ideas in relation to the treatment of the Ahwazi people by the Iranian authorities. Sur place activities such as they were amounted to activity on his Facebook page only. He had attended no demonstrations in London and had exhibited no genuine political interest in the Ahwazi or indeed any other political interest and his Facebook page activity was mostly recent i.e. during 2013 and a lot of it related to a period after the date of decision. His Facebook activity had not resulted in him being contacted by the Iranian authorities. The judge was far from satisfied that the appellant's father had ever been arrested. The judge found that he had left Iran legally and returned there on three occasions and on no occasion had he even been questioned by the Iranian authorities let alone mistreated and he had no political profile so far as the Iranian authorities were concerned. The information on his Facebook page even if located by the authorities was so superficial that the judge was far from satisfied that they would have any particular interest in him whether as claimed by him or at all.
5. The applicant put forward various further pieces of information and evidence which fell to be considered as part of the fresh claim.
6. There was a letter from Kamil Alboshoka a human rights activist who said that the applicant had attended many protests and meetings in the United Kingdom. Kamil Alboshoka had only known the applicant since January 2014 so he could not confirm his activities prior to then. The respondent noted that there was no further supporting evidence that the applicant had attended "many protests" or any evidence of his roles in any protests he had attended. The letter was considered to be self-serving and therefore little weight was attached to it.
7. With regard to photographs purporting to show the applicant is a well-known Ahwazi activist, it was noted that four of the photographs showed him on a street alone next to a flag and the other three showed him with various people but he had given no details of their identity. It was noted that the photographs appeared to have been uploaded to his Facebook account.
8. As regards his Facebook page and translation it was noted that the translations referred to protests and supporting the plight of the Ahwazi people. It was noted that he had submitted screenshots of his Facebook profile including his e-mail address in his own name. It was noted that he blogged about demonstrations and Ahwazi prisoners. The respondent considered the Iran Country Information and Guidance relating to journalists and bloggers, dated 9 October 2014. It was accepted that perceived government critics including journalists, social media users and bloggers might be subjected by the Iranian authorities to harassment, intimidation, arbitrary arrest, severe custodial sentences, incommunicado detention, unfair trial and torture. However it was considered that merely entering into journalism or blogging activities did not automatically entitle an individual to a grant of international protection. The Iran Country Information and Guidance said that people who claimed to have taken part in journalism or blogging should be able to demonstrate that their activities had brought or would bring them to the adverse attention of the Iranian authorities.
9. The respondent referred to the decision in AB and Others [2015] UKUT 0257 (IAC). It was noted that the applicant had returned to Iran several times and the authorities had not stopped him or interrogated him. There was no evidence that the authorities would be aware of his Facebook account and online blogs. There was no evidence as to how many views his blogs had had or by whom and when entering his name into a search engine online nothing adverse was brought up.
10. Reference was also made to the country guidance case of SA [2011] UKUT 41 (IAC). It was noted that in that case the appellant was an Arab, who had been previously arrested and detained for anti-government leafleting and had left Iran illegally and had been in the United Kingdom for six years. Although it was accepted that the applicant was an ethnic Arab it was not accepted that he had been of any interest to the authorities prior to leaving Iran or since being in the United Kingdom and he had left Iran on his own passport with a visa for study in the United Kingdom. It was not considered that his circumstances were such as to justify a grant of leave.
11. As regards a witness statement from the applicant's uncle who said the applicant was a regular blogger and expressed antigovernment views in his blog, the respondent commented that the applicant had provided no evidence that he blogged on any sites which were viewed by the Iranian authorities and the letter was considered to be self-serving and little weight was placed on it.
12. The respondent also referred to the country guidance case of BA Iran [2011] UKUT 36 (IAC). It was commented that the applicant had failed to provide tangible evidence that he had been active in demonstrations or events that would bring him to the attention of the Iranian authorities, and when identifying the risk factors that might be involved on his return it was considered that he would not be of adverse interest to anyone and that there was no risk of persecution on return to Iran on account of his sur place activities in the United Kingdom.
13. Thereafter the respondent also considered various articles on the deteriorating situation for the Ahwazis in Iran noting that they were marginalised and subject to discrimination in access to education, employment, inadequate housing and political participation and cultural rights. His history of not having experienced problems on that account was noted, and also it was commented that although he claimed his father was arrested he had failed to provide any evidence at his appeal to substantiate that claim.
14. Thereafter the respondent went on to consider the claim under Article 8. I will say no more about that as it was not the subject of any challenge in the grounds or in Ms Thirumaney's submissions.
15. Ms Thirumaney concentrated her argument on the applicant's Facebook activities, his attendance at demonstrations and his web blogs. She argued that the respondent had not attached appropriate weight to the country guidance case of SA concerning risk to the applicant on account of his ethnicity as an Ahwazi Arab. She emphasised the nature of his activities including Facebook posts against the Iranian regime in support of the Ahwazis, and also his attendance at demonstrations. His web blog was critical of the Iranian government and had subsequently been blocked. The country guidance noted the fact that the authorities were suspicious of Iranian Arabs, they might be interrogated more vigorously or generally attract more attention than Iranians who were not Arabs and in that sense being an Ahwazi Arab might enhance risks on return, though a person who was not otherwise at risk would not be at risk just because of his Arab ethnicity.
16. As regards his Facebook and web blogs, it was argued that he could easily be identified or attributed from his Facebook page, noting that on his Facebook page his details including his e-mail address and date of birth were recorded there, his photographs were all over his Facebook account and his web log mainly consisted of articles that were very critical of the Iranian regime and had subsequently been blocked by the Iranian Cyber Police. Background evidence which she cited referred to the monitoring by the Iranian state of 8 million Facebook accounts and of continuing crackdown on any expression of dissent or activities the authorities disapproved of online, examples of people who had been arrested, detained and ill-treated as a consequence of criticising the government in posts made online and an increase in the arrests of internet users. The examples given included the case of a dual Iranian/UK citizen who was arrested when travelling to see family in Iran because of comments he posted on Facebook and who was sentenced in May 2014 to twenty years' imprisonment.
17. As regards the applicant's attendance at demonstrations and his association with the Ahwazi Democratic Front, Ms Thirumaney referred to the photographs and the applicant's leafleting activities. Reliance was placed on the decision of the Upper Tribunal in AB [2015] UKUT 0257 (IAC), which referred to risk to persons returning to Iran who would be likely to be asked about their internet activity and that it would be likely if they had any internet activity for that to be exposed and if it was less than flattering of the government to lead at least to a real risk of persecution. It also said that the capability to monitor outside Iran was not very different from the capability to monitor inside Iran. There would be enhanced interest in a person whose leave to remain had lapsed and who might be travelling on a special passport and the more active they had been the more likely the authorities' interest could lead to persecution. A discreet person who had blogged in the United Kingdom might not necessarily come to the attention of the authorities but any lack of discretion could lead to a hostile interrogation on return.
18. In the detailed grounds and in her oral submissions Mrs Gray argued that it was clearly open to the respondent to conclude as she did. She had taken into account the authorities such as SA and AB. It was necessary to consider the level of political involvement and to consider that issue before the question of whether the person would come to the attention of the authorities and the priority the regime would give to training him. It was that point that real risk was to be assessed. A person's profile was important to the question of whether they would be of interest. All factors were to be considered. It was clear from BA [2011] UKUT 36 (IAC) that it was not enough for an applicant simply to show that they were involved in activities of a relatively limited duration and importance without producing any evidence that the authorities would be concerned about them or even that they were or would be aware of them. The central question was whether the applicant had shown there was a realistic prospect of success before a First-tier Judge in showing that he was of interest to the authorities. It was said at paragraph 66 of BA that the infrequent demonstrator who played no particular role in demonstrations and whose participation was not highlighted in the media did not face a real risk of identification and therefore not a real risk of consequent ill-treatment on return.
19. As regards SA, the appellant there had been found to be a person of interest to the authorities previously and he had left illegally. He had been detained and tortured. There were clear points of difference between his case and that of the applicant.
20. AB was not country guidance as there was not a sufficient evidential basis to provide guidance on the issues considered there so it was of use but was limited. It did not supplant the requirement in BA that the internet activities had to be such as to engage the adverse interest of the Iranian authorities. The fact of activities was not enough but the key question was whether the activities had given rise to adverse interest. It was then necessary to consider whether the person would be identified and whether they would be of interest.
21. If one looked at the decision letter it could be seen that the relevant issues were all given appropriate consideration in the context of the correct legal test as set out in WM (DRC) [2006] EWCA Civ 1495. The test was whether the Secretary of State had rationally concluded that there was not a realistic prospect of success in an appeal before a First-tier Judge.
22. With regard to AB and in particular paragraph 467, there had to be a threshold and a profile for there to be adverse interest and, as had been held in BA, simply establishing that a person had been active was not enough to show a real risk. It seemed that the applicant could return on his passport and there was nothing to support the contention that the level of his activity was such as to put him at real risk. There was no evidence as to how he would be returning, it could be on his normal passport which he could renew so that the type of pinch point referred to in AB would not exist. He had been back previously and had not been stopped.
Discussion
23. I think that Ms Thirumaney was right to concentrate on the issues on which she did in her skeleton argument and in submissions. I see no error of law in the respondent's addressing of the letter from Mr Alboshoka and the witness statement from the applicant's uncle. Nor do I consider that there is any arguable risk purely on account of his Ahwazi ethnicity. The photographs provided in that regard are of minimal materiality.
24. My main concerns are with regard to the Facebook page and translation and the web blogs. It is of course right, as Mrs Gray pointed out, that BA makes it clear that one has to consider the relevant factors such as the nature of the sur place activity, identification risk, factors triggering enquiry/action on return, consequences of identification and identification risk on return in assessing risk on return with regard to sur place activities. It is necessary also of course to bear in mind the issue is that of whether the respondent rationally concluded that the previously considered material and fresh material taken together are not such as to create a realistic prospect of success before a First-tier Judge. That in no sense means that a favourable decision to the applicant on a fresh claim judicial review entails that an appeal would succeed but no more than that on a rational view there is a realistic prospect of such success.
25. The particular concerns I have are with regard to the enhanced activity since the decision of the judge. That decision was clearly right based on the evidence of activities at that time. Matters have progressed however in terms of the kind of matters which the applicant has placed on the internet together with details that are capable of identifying him, and in relation to which his ethnicity as an Ahwazi Arab enhances the risk. I am conscious of the fact that of course I am not deciding an appeal but simply determining the rationality of the respondent's decision in this case. In this context it is relevant to bear in mind the points made such as the previous returns to Iran by the applicant but the latest of those was in 2010 before his internet activity had developed to the point that it has now. These posts clearly include support for the Ahwazi Democratic Popular Front and also criticisms of the regime in Iran. He is capable of being identified by the information he has provided, and the grounds note examples of cases including people based outside Iran, whose activities have been identified and who have been arrested and detained and ill-treated as a consequence. The main tenor of the refusal is on the basis that there is no evidence that the authorities would be aware of the applicant's accounts. It is difficult to see however how evidence of that sort could be provided. There is the risk, adverted to in AB, of the likelihood of the applicant on return being asked about his internet activity, a risk enhanced by his ethnicity. There is evidence as I say of other people's online activities being monitored and I consider that bringing these matters together it has been shown that the decision of the respondent is irrational in not taking proper account of risk to the applicant on return in light of the evidence provided of his online activities and as a consequence the decision that the matter does not give rise to a fresh claim is in my view irrational and is accordingly quashed.
26. I will hear the parties on costs and any other ancillary matters at the handing down of the judgment.~~~~0~~~~
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING
JR/6869/2016
Field House,
Breams Buildings
London
EC4A 1WR
2 May 2017
The QUEEN
(ON The application OF)
Aghil [B]
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE allen
- - - - - - - -
Ms M Thirumaney, instructed by Shervins Solicitors appeared on behalf of the Applicant.
Mrs J Gray, instructed by the Government Legal Department appeared on behalf of the Respondent.
- - - - - - - - - - - - -
ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
- - - - - - - - - - - - -
JUDGE Allen: This application for a judicial review is brought with the permission of Judge McGeachy following an oral permission hearing on 16 November 2016. In his application the applicant Mr [B] challenges the Secretary of State's decision of 21 March 2016 refusing to accept that his further submissions together with the previously considered material amount to a fresh claim for asylum and human rights.
1. The applicant came to the United Kingdom in 2006. He remained on a student visa which was renewed periodically but had no leave after expiry of the visa on 30 September 2011. Subsequent applications for leave to remain as a student were refused.
2. He claimed asylum on 20 March 2013 and this was refused on 9 April 2013 and a subsequent appeal was dismissed. He was appeal rights exhausted on 27 June 2013.
3. His asylum claim made at that time was based on his father being part of a political group and having expressed his views on the treatment of the Ahwazi Arabs by the Iranian authorities. This caused the applicant to become interested. He said his father was arrested and he himself had started a Facebook page in 2007 in his own name but changed it to Ahwaz Ahwazi in February or March 2013. He claimed to have posted from 2010 onwards about the Ahwazi people.
4. The judge found that the appellant had not produced documentary evidence of his Facebook activity from 2010 and that this was relevant to his credibility. He had no documentary evidence to show on Facebook that ideas had been exchanged between him and his Facebook friends. The judge did not accept that the appellant had exchanged ideas in relation to the treatment of the Ahwazi people by the Iranian authorities. Sur place activities such as they were amounted to activity on his Facebook page only. He had attended no demonstrations in London and had exhibited no genuine political interest in the Ahwazi or indeed any other political interest and his Facebook page activity was mostly recent i.e. during 2013 and a lot of it related to a period after the date of decision. His Facebook activity had not resulted in him being contacted by the Iranian authorities. The judge was far from satisfied that the appellant's father had ever been arrested. The judge found that he had left Iran legally and returned there on three occasions and on no occasion had he even been questioned by the Iranian authorities let alone mistreated and he had no political profile so far as the Iranian authorities were concerned. The information on his Facebook page even if located by the authorities was so superficial that the judge was far from satisfied that they would have any particular interest in him whether as claimed by him or at all.
5. The applicant put forward various further pieces of information and evidence which fell to be considered as part of the fresh claim.
6. There was a letter from Kamil Alboshoka a human rights activist who said that the applicant had attended many protests and meetings in the United Kingdom. Kamil Alboshoka had only known the applicant since January 2014 so he could not confirm his activities prior to then. The respondent noted that there was no further supporting evidence that the applicant had attended "many protests" or any evidence of his roles in any protests he had attended. The letter was considered to be self-serving and therefore little weight was attached to it.
7. With regard to photographs purporting to show the applicant is a well-known Ahwazi activist, it was noted that four of the photographs showed him on a street alone next to a flag and the other three showed him with various people but he had given no details of their identity. It was noted that the photographs appeared to have been uploaded to his Facebook account.
8. As regards his Facebook page and translation it was noted that the translations referred to protests and supporting the plight of the Ahwazi people. It was noted that he had submitted screenshots of his Facebook profile including his e-mail address in his own name. It was noted that he blogged about demonstrations and Ahwazi prisoners. The respondent considered the Iran Country Information and Guidance relating to journalists and bloggers, dated 9 October 2014. It was accepted that perceived government critics including journalists, social media users and bloggers might be subjected by the Iranian authorities to harassment, intimidation, arbitrary arrest, severe custodial sentences, incommunicado detention, unfair trial and torture. However it was considered that merely entering into journalism or blogging activities did not automatically entitle an individual to a grant of international protection. The Iran Country Information and Guidance said that people who claimed to have taken part in journalism or blogging should be able to demonstrate that their activities had brought or would bring them to the adverse attention of the Iranian authorities.
9. The respondent referred to the decision in AB and Others [2015] UKUT 0257 (IAC). It was noted that the applicant had returned to Iran several times and the authorities had not stopped him or interrogated him. There was no evidence that the authorities would be aware of his Facebook account and online blogs. There was no evidence as to how many views his blogs had had or by whom and when entering his name into a search engine online nothing adverse was brought up.
10. Reference was also made to the country guidance case of SA [2011] UKUT 41 (IAC). It was noted that in that case the appellant was an Arab, who had been previously arrested and detained for anti-government leafleting and had left Iran illegally and had been in the United Kingdom for six years. Although it was accepted that the applicant was an ethnic Arab it was not accepted that he had been of any interest to the authorities prior to leaving Iran or since being in the United Kingdom and he had left Iran on his own passport with a visa for study in the United Kingdom. It was not considered that his circumstances were such as to justify a grant of leave.
11. As regards a witness statement from the applicant's uncle who said the applicant was a regular blogger and expressed antigovernment views in his blog, the respondent commented that the applicant had provided no evidence that he blogged on any sites which were viewed by the Iranian authorities and the letter was considered to be self-serving and little weight was placed on it.
12. The respondent also referred to the country guidance case of BA Iran [2011] UKUT 36 (IAC). It was commented that the applicant had failed to provide tangible evidence that he had been active in demonstrations or events that would bring him to the attention of the Iranian authorities, and when identifying the risk factors that might be involved on his return it was considered that he would not be of adverse interest to anyone and that there was no risk of persecution on return to Iran on account of his sur place activities in the United Kingdom.
13. Thereafter the respondent also considered various articles on the deteriorating situation for the Ahwazis in Iran noting that they were marginalised and subject to discrimination in access to education, employment, inadequate housing and political participation and cultural rights. His history of not having experienced problems on that account was noted, and also it was commented that although he claimed his father was arrested he had failed to provide any evidence at his appeal to substantiate that claim.
14. Thereafter the respondent went on to consider the claim under Article 8. I will say no more about that as it was not the subject of any challenge in the grounds or in Ms Thirumaney's submissions.
15. Ms Thirumaney concentrated her argument on the applicant's Facebook activities, his attendance at demonstrations and his web blogs. She argued that the respondent had not attached appropriate weight to the country guidance case of SA concerning risk to the applicant on account of his ethnicity as an Ahwazi Arab. She emphasised the nature of his activities including Facebook posts against the Iranian regime in support of the Ahwazis, and also his attendance at demonstrations. His web blog was critical of the Iranian government and had subsequently been blocked. The country guidance noted the fact that the authorities were suspicious of Iranian Arabs, they might be interrogated more vigorously or generally attract more attention than Iranians who were not Arabs and in that sense being an Ahwazi Arab might enhance risks on return, though a person who was not otherwise at risk would not be at risk just because of his Arab ethnicity.
16. As regards his Facebook and web blogs, it was argued that he could easily be identified or attributed from his Facebook page, noting that on his Facebook page his details including his e-mail address and date of birth were recorded there, his photographs were all over his Facebook account and his web log mainly consisted of articles that were very critical of the Iranian regime and had subsequently been blocked by the Iranian Cyber Police. Background evidence which she cited referred to the monitoring by the Iranian state of 8 million Facebook accounts and of continuing crackdown on any expression of dissent or activities the authorities disapproved of online, examples of people who had been arrested, detained and ill-treated as a consequence of criticising the government in posts made online and an increase in the arrests of internet users. The examples given included the case of a dual Iranian/UK citizen who was arrested when travelling to see family in Iran because of comments he posted on Facebook and who was sentenced in May 2014 to twenty years' imprisonment.
17. As regards the applicant's attendance at demonstrations and his association with the Ahwazi Democratic Front, Ms Thirumaney referred to the photographs and the applicant's leafleting activities. Reliance was placed on the decision of the Upper Tribunal in AB [2015] UKUT 0257 (IAC), which referred to risk to persons returning to Iran who would be likely to be asked about their internet activity and that it would be likely if they had any internet activity for that to be exposed and if it was less than flattering of the government to lead at least to a real risk of persecution. It also said that the capability to monitor outside Iran was not very different from the capability to monitor inside Iran. There would be enhanced interest in a person whose leave to remain had lapsed and who might be travelling on a special passport and the more active they had been the more likely the authorities' interest could lead to persecution. A discreet person who had blogged in the United Kingdom might not necessarily come to the attention of the authorities but any lack of discretion could lead to a hostile interrogation on return.
18. In the detailed grounds and in her oral submissions Mrs Gray argued that it was clearly open to the respondent to conclude as she did. She had taken into account the authorities such as SA and AB. It was necessary to consider the level of political involvement and to consider that issue before the question of whether the person would come to the attention of the authorities and the priority the regime would give to training him. It was that point that real risk was to be assessed. A person's profile was important to the question of whether they would be of interest. All factors were to be considered. It was clear from BA [2011] UKUT 36 (IAC) that it was not enough for an applicant simply to show that they were involved in activities of a relatively limited duration and importance without producing any evidence that the authorities would be concerned about them or even that they were or would be aware of them. The central question was whether the applicant had shown there was a realistic prospect of success before a First-tier Judge in showing that he was of interest to the authorities. It was said at paragraph 66 of BA that the infrequent demonstrator who played no particular role in demonstrations and whose participation was not highlighted in the media did not face a real risk of identification and therefore not a real risk of consequent ill-treatment on return.
19. As regards SA, the appellant there had been found to be a person of interest to the authorities previously and he had left illegally. He had been detained and tortured. There were clear points of difference between his case and that of the applicant.
20. AB was not country guidance as there was not a sufficient evidential basis to provide guidance on the issues considered there so it was of use but was limited. It did not supplant the requirement in BA that the internet activities had to be such as to engage the adverse interest of the Iranian authorities. The fact of activities was not enough but the key question was whether the activities had given rise to adverse interest. It was then necessary to consider whether the person would be identified and whether they would be of interest.
21. If one looked at the decision letter it could be seen that the relevant issues were all given appropriate consideration in the context of the correct legal test as set out in WM (DRC) [2006] EWCA Civ 1495. The test was whether the Secretary of State had rationally concluded that there was not a realistic prospect of success in an appeal before a First-tier Judge.
22. With regard to AB and in particular paragraph 467, there had to be a threshold and a profile for there to be adverse interest and, as had been held in BA, simply establishing that a person had been active was not enough to show a real risk. It seemed that the applicant could return on his passport and there was nothing to support the contention that the level of his activity was such as to put him at real risk. There was no evidence as to how he would be returning, it could be on his normal passport which he could renew so that the type of pinch point referred to in AB would not exist. He had been back previously and had not been stopped.
Discussion
23. I think that Ms Thirumaney was right to concentrate on the issues on which she did in her skeleton argument and in submissions. I see no error of law in the respondent's addressing of the letter from Mr Alboshoka and the witness statement from the applicant's uncle. Nor do I consider that there is any arguable risk purely on account of his Ahwazi ethnicity. The photographs provided in that regard are of minimal materiality.
24. My main concerns are with regard to the Facebook page and translation and the web blogs. It is of course right, as Mrs Gray pointed out, that BA makes it clear that one has to consider the relevant factors such as the nature of the sur place activity, identification risk, factors triggering enquiry/action on return, consequences of identification and identification risk on return in assessing risk on return with regard to sur place activities. It is necessary also of course to bear in mind the issue is that of whether the respondent rationally concluded that the previously considered material and fresh material taken together are not such as to create a realistic prospect of success before a First-tier Judge. That in no sense means that a favourable decision to the applicant on a fresh claim judicial review entails that an appeal would succeed but no more than that on a rational view there is a realistic prospect of such success.
25. The particular concerns I have are with regard to the enhanced activity since the decision of the judge. That decision was clearly right based on the evidence of activities at that time. Matters have progressed however in terms of the kind of matters which the applicant has placed on the internet together with details that are capable of identifying him, and in relation to which his ethnicity as an Ahwazi Arab enhances the risk. I am conscious of the fact that of course I am not deciding an appeal but simply determining the rationality of the respondent's decision in this case. In this context it is relevant to bear in mind the points made such as the previous returns to Iran by the applicant but the latest of those was in 2010 before his internet activity had developed to the point that it has now. These posts clearly include support for the Ahwazi Democratic Popular Front and also criticisms of the regime in Iran. He is capable of being identified by the information he has provided, and the grounds note examples of cases including people based outside Iran, whose activities have been identified and who have been arrested and detained and ill-treated as a consequence. The main tenor of the refusal is on the basis that there is no evidence that the authorities would be aware of the applicant's accounts. It is difficult to see however how evidence of that sort could be provided. There is the risk, adverted to in AB, of the likelihood of the applicant on return being asked about his internet activity, a risk enhanced by his ethnicity. There is evidence as I say of other people's online activities being monitored and I consider that bringing these matters together it has been shown that the decision of the respondent is irrational in not taking proper account of risk to the applicant on return in light of the evidence provided of his online activities and as a consequence the decision that the matter does not give rise to a fresh claim is in my view irrational and is accordingly quashed.
26. I will hear the parties on costs and any other ancillary matters at the handing down of the judgment.~~~~0~~~~