Malaysian asylum-seeker granted leave to challenge decision to reject ‘fresh claim’ over fear of religious persecution

Lady Clark of Calton
Lady Clark of Calton
A Malaysian national seeking asylum in the UK who claimed that she was the victim of violence in her home country because she was a Christian has successfully challenged a decision to refuse to accept further evidence supporting her application as a “fresh claim”.
A judge in the Court of Session granted leave to appeal after ruling that the tribunal’s decision was “perverse”, having noted that the applicant’s account of violence and threats had been accepted as “credible”.
‘Fresh claim’
Lady Clark of Calton heard that the applicant “SR” claimed that in August 2014 a group of men forced themselves into her home and a knife was put to her throat.
The rest of her family were also threatened because her father was still considered a Muslim but was practicing Christianity and living with a non-Muslim family.
Her father told the men that they would all attend the Islamic Office the next day to convert the whole family, but the Home Secretary refused the woman’s application after ruling that the men involved in the violent and threatening behaviour were not “tied” to the Malaysian authorities.  
SR, along with her brother and father, appealed to the First-tier Tribunal, which noted that the decision maker had accepted that the family had been victims of other violent incidents in 2003 and 2010 and that the incident in 2014 had happened.
It was also accepted that the family had started the conversion process from Christianity to the Muslim faith, but the tribunal judge did not accept that that the Malaysian authorities were responsible.
Solicitors for the applicant then made a claim under paragraph 353 of the Immigration Rules, submitted further information in support of asked matters to be determined as a fresh claim. 
That information included medical evidence about injuries and psychological damage to the applicant’s father, a report from an expert professor who concluded that there was a “serious risk” that the applicant - if she had signed the form to start the conversion process - would be identified as a Muslim and would be at “risk of persecution and serious harm” if forced to return to Malaysia.  
The second First-tier Tribunal judge considered that the issue was “whether or not this appellant had signed a form to convert to Islam, which would mean the Malaysian authorities would consider her to be a Muslim…”, and concluded that she had not signed such a form.
‘Perverse decision’
The applicant was seeking to challenge that decision, and the Court of Session granted leave to appeal.
The judge observed that when the second FTT judge’s reasoning was examined, there was “no attempt” to consider the issue in the context of the evidence about the violent incidents which the first FTT judge accepted. 
In a written opinion, Lady Clark of Calton said: “Thus on the facts always described by the applicant in this case and supported by other witnesses, there seem to be two potential sources of a well-founded fear of persecution. The first source arose from the violent actions and threats if the people involved were accepted as a responsibility of the Malaysian authorities. That link was not accepted by the First-tier Tribunal. 
“The second source arose because the applicant, as a result of violence and threats particularly as described in the incident of 11 August 2014 started the conversion process and may be identified as a perceived convert who remains a Christian and is not prepared to practice the Islamic religion.”
She concluded: “This is a case in which the applicant has always given evidence to the effect that the violent incidents provoked the forced visit to the Islamic office to start the conversion process. There was no criticism of her credibility in respect of this by the First-tier Tribunal. 
“That might be thought to be in her favour. If it is not, the conclusion must be that she did not have a proper hearing before the First-tier Tribunal on this point as it was not specifically dealt with. 
“My reading of the decision of the second First-tier Tribunal decision dated 1 July 2017 is that the evidence was not assessed in its full context and the reasoning given seems perverse. The Upper Tribunal failed to provide a remedy. 
“In my opinion this is a case in which leave to appeal should be granted in terms of rule of court 41.57(2)(b).”

© Scottish Legal News Ltd 2020

Other judgments by Lady Clark of Calton