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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> SD, Re Judicial Review [2007] ScotCS CSOH_97 (12 June 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_97.html Cite as: [2007] CSOH 97, [2007] ScotCS CSOH_97 |
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 97 |
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P603/07 |
OPINION OF LORD MACPHAIL in the Petition of S D Petitioner; for Judicial Review of a decision by the Secretary of State for the Home Department _________ |
Petitioner: Melvin-Farr; Allan McDougall
Respondent: A.F. Stewart; Office of the
Solicitor to the Advocate General
[2] The
history of the matter is as follows. The petitioner is a national of
[3] By
a letter dated
[4] There was no dispute as to the law. The relevant rule is rule 353 of the Immigration Rules (HC 395, as amended). It provides in part:
"The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."
The decision letter accepted that the material submitted by the petitioner's solicitors had not already been considered. The issue accordingly was whether its content satisfied sub-paragraph (ii).
[5] The petitioner's counsel cited a number of authorities, but it is sufficient to refer to WM (DRC )v Secretary of State for the Home Department [2006] EWCA Civ 1495, a recent decision of the Court of Appeal, where the earlier authorities are noticed and the law is authoritatively stated in the leading judgment by Buxton LJ at paragraphs 6 to 11. The court considers the proper role of the Secretary of State, and of the court in its supervisory capacity, in relation to failed asylum applicants who produce new material that is said to ground a "fresh claim". As to the task of the Secretary of State, first, "the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that." Second, "the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return." Third, the consideration of all the decision-makers (the Secretary of State, the adjudicator and the court) "must be informed by the anxious scrutiny of the material that is axiomatic in decisions that, if incorrectly made, may lead to the applicant's exposure to persecution." As to the task of the court when reviewing a decision of the Secretary of State as to whether a fresh claim exists, the court must address the following matters. First, has the Secretary of State asked himself the correct question: "whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return." Second, has the Secretary of State satisfied the requirement of anxious scrutiny? "If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."
[6] The petitioner's counsel pointed out that it was also said in WM (DRC) that the test the application had to meet before it became a fresh claim was a modest one; and that the adjudicator's finding as to the applicant's credibility may be of little relevance where the new material does not emanate from the applicant himself. Here, said counsel, the writer of the decision letter had ignored the following matters. First, he had disregarded documents described as "two police reports and four letters". The decision-maker explains in the letter he has dismissed them because it is not clear whether they are translations or copies or both, and they have come from an unknown source. The petitioner's counsel did not refer me to these documents. The decision-maker's approach appears to me to be perfectly rational. While the onus of proof on the petitioner was not high, it was for him to establish the provenance of the documents submitted, and it was within the decision-maker's discretion to disregard them if he failed to do so.
[7] Secondly,
the petitioner's counsel referred to two news items from the Internet which, he
said, had not been sufficiently taken into account. After some prompting from
the Bench, he identified them as pages 21 and 46 of no. 7/1 of process. They do
not refer to the petitioner. The first reports a statement by a United Nations
official on
[8] No
other specific criticisms of the contents of the decision letter were
attempted. Counsel for the respondent nevertheless carefully took me through it
and demonstrated that the decision-maker had correctly directed himself in law
and had properly considered all the material submitted by the petitioner's
solicitors. Counsel submitted that the decision letter satisfied the
requirements relating to the giving of reasons in this field (Singh v Secretary of State for the Home Department 2000 SC 219 at
222H-223C). I accept that submission. Counsel also referred me to PS (Ltte - Internal Flight - Sufficiency of
protection) Sri Lankan CG [2004] UKIAT 00297, a country guidance decision
by the Immigration Appeal Tribunal. At paragraph 71 the Tribunal states that
those whom the LTTE has on the objective evidence targeted in