Shahdad, R (on the application of) v Immigration Appeal Tribunal

An expert report does not corroborate an asylum claimant’s account merely because it is consistent with that account. Where the report’s conclusions depend on the claimant’s factual narrative, and the fact-finder rejects that narrative as fabricated, those conclusions may be beside the point. Judicial review does not permit the court to re-evaluate credibility or substitute its own assessment of the evidence. The question is whether the adjudicator made an error of law, reasoning or principle, or reached a conclusion unavailable on the findings. A risk-on-return argument not advanced before the adjudicator, and unsupported by the evidence, cannot establish such an error.

The claimant, an Iranian national, claimed asylum on the basis of alleged persecution arising from his minority religious views, difficulties with a religious teacher, and alleged membership of the Basij. The Secretary of State refused the claim. The Adjudicator dismissed the appeal, finding the Basij account unbelievable and fabricated and concluding that the claimant had no well-founded fear of persecution. The Immigration Appeal Tribunal refused permission to appeal.

On judicial review, the claimant argued that the Adjudicator had failed properly to consider an expert report by Mr E G H Joffe, to give reasons for rejecting it, and to address the risk faced by a failed asylum seeker on return.

1. The application was dismissed. The Adjudicator’s findings concerning the claimant’s alleged Basij membership were findings of fact based on oral evidence and the surrounding material. They disclosed no error of reasoning or principle and were not findings that could be said to be against the weight of the evidence.
2. The assessment of risk arising from the claimant’s religious views and his religious teacher was a matter of judicial evaluation on the primary facts found. The Adjudicator’s conclusion was plainly open to him.
3. The expert report did not positively corroborate the claimant’s account. Its discussion of the political background was merely consistent with the account. Its analysis of the claimant’s position, including the consequences of arrest on return, assumed that his account was true. Once that account had been rejected, the conditional conclusions did not undermine the Adjudicator’s findings.
4. The Adjudicator was not required to reject the report in order to reject the claimant’s factual narrative. It was coherent to accept the expert’s observations, subject to their factual basis, while finding the claimant untruthful.
5. The failed-asylum-seeker risk argument had not formed part of the claimant’s case before the Adjudicator, and the report supplied no evidential support for risk on return independent of the rejected account. The court did not decide whether the point could also be excluded because it had not been raised before the Tribunal.
6. The Tribunal’s refusal of permission disclosed no error of law, reasoning or principle. The application was dismissed, with no order as to costs save for the standard order for detailed assessment of the claimant’s publicly funded costs.

• High Court (Administrative Court): judicial review dismissed.
• Immigration Appeal Tribunal: permission to appeal from the Adjudicator was refused on 13 June 2002.
• Adjudicator: the claimant’s asylum appeal was dismissed in a determination promulgated on 10 May 2002.