Petition of Iranian asylum seeker who transported Kurdish political party members refused by Outer House



Lord Fairley
Lord Fairley

An Iranian asylum seeker who claimed to be at risk because he was suspected of supporting a Kurdish political party has had his petition for judicial review of the decision to refuse his claim rejected. 

Mdrik Valabaigi claimed the Upper Tribunal had erred in rejecting the appeal ground that the FTT had not afforded sufficient weight to expert evidence produced in support of his application. 

The petition was heard in the Outer House of the Court of Session by Lord Fairley

Material discrepancies 

The petitioner claimed that in February 2014 he had been compelled to give members of the Kurdish political party PJAK a lift in his taxi. He arrived in the UK a month later, and claimed asylum on the basis that this incident meant he was at real risk of persecution by the Iranian authorities. 

The petitioner’s first claim was refused by the Home Office in February 2015, with rights of appeal exhausted in December 2015. Further submissions were made to the Secretary of State in December 2017, which relied substantially upon the same factual material but with the addition of what the petitioner claimed was an arrest warrant issued by the Iranian authorities as well as two expert reports authenticating it. 

This claim was also rejected in December 2018. On appeal to the First-tier Tribunal authentication reports were produced that claimed the arrest warrant was genuine, however the FTT dismissed the appeal. The Upper Tribunal refused permission to appeal on 2 July 2019. 

The proposed ground of appeal to the UT that was challenged in the petition was that the FTT had erred in not affording sufficient weight to an expert’s report dated 23 January 2019 that explained why it may not be unusual for the Iranian authorities to have issued an arrest warrant so long after the event it was issued in connection to. 

In refusing the appeal, the UT stated that the weight to be attached to the evidence is a matter for the judge and the grounds fail to identify a material error of law. Further, in the 2015 appeal the appellant had not been found to be credible, and the FTT judge had given detailed consideration to the arrest warrant, its late production, and its provenance, finding material discrepancies. 

It was submitted for the petitioner that the UT had failed to give adequate reasons for its refusal. The UT’s decision only made express reference to the second of two authentication reports produced by the petitioner, but was habile to cover the treatment of both reports.  

Further, the FTT had plainly misunderstood the evidence of the expert in the earlier report by concluding it was normal practice to state a reason for an arrest warrant, when the Iranian court in fact had the right to leave that section of the warrant blank. 

Concocted story 

In his decision, Lord Fairley began by considering whether the first authentication report formed part of the appeal grounds, saying: “I saw no force in the submission that the FTT judge had arguably erred in her treatment and consideration of the first authentication report. Interpretation of any ambiguity in the evidence of the expert was a matter for the FTT judge.” 

On the clarity of the UT’s reasoning, he said: “I accept the respondent’s submission that those reasons were clear and intelligible to an informed reader. In particular, it is clear that the UT refused leave to advance the argument set out in the proposed Grounds because, on a fair reading of the whole of the FTT judge’s decision, it could be seen that full consideration had been given to the provenance of the warrant and that, in the context of the evidence as a whole, a number of material discrepancies were found.” 

He continued: “In particular, discrepancies were found in the petitioner’s oral evidence and his witness statement to the FTT which undermined his claim that the warrant was genuine. This led the FTT judge to conclude that the story as to how the warrant came to be in his hands had been concocted.” 

On the consideration of the other expert evidence, he said: “The FTT judge took account of the evidence of the expert but found it to be of no assistance. That was understandable. The expert did not address at all the question of the delay of approximately 6months between the date when the warrant was said to have been issued in January 2016 and its arrival at the petitioner’s home in July of that year. In other respects, his comments at page2 of the report of 23January 2019 were speculative.” 

He concluded: “The FTT judge was entitled to conclude that the expert offered no assistance on the issue of delay, and in determining that the FTT judge ‘gave full and detailed consideration to the evidence of the appellant and his witnesses’, the UT judge was correct to conclude that it was not arguable that material evidence had been misunderstood or overlooked.” 

For these reasons, the petition was refused. 

© Scottish Legal News Ltd 2020



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