Omid Ghanbarpar, R (on the application of) v Secretary of State for the Home Department

An appellate tribunal should not interfere with an adjudicator’s findings of fact unless they are plainly wrong or unsustainable. A finding that reasons are inadequate must be assessed carefully where the adjudicator heard and saw the witness and made positive credibility findings. Remittal should not be ordered lightly if it places those findings at risk. An appellate tribunal must also understand and accurately address the evidence on which it relies. A fundamental misunderstanding of central evidence is an error of law.

The claimant, an Iranian asylum seeker, challenged the Immigration Appeal Tribunal’s decision allowing the Secretary of State’s appeal and remitting his case for a fresh hearing. An adjudicator had accepted the claimant’s evidence, found him credible, and allowed both his asylum and human-rights appeals. The Tribunal considered the adjudicator’s credibility findings inadequate, particularly concerning an incident in which a dog was dressed in a mullah’s turban.

The central issues were whether the Tribunal had misunderstood the evidence, applied the correct approach to appellate interference with findings of fact, and was entitled to remit the case despite the positive credibility findings.

1. Application allowed. The Tribunal’s determination was quashed. A mandatory order was made requiring the Tribunal to dismiss the Secretary of State’s appeal. The defendant was ordered to pay the claimant’s costs of the judicial review proceedings.
2. The applicable approach was not disputed: the Tribunal could interfere with an adjudicator’s findings only where they were plainly wrong or unsustainable. That power should be exercised sparingly where the adjudicator had assessed oral evidence. The Tribunal had not formally substituted its own conclusion, but its finding that the reasons were inadequate placed the claimant’s positive credibility findings at risk.
3. The Tribunal fundamentally misunderstood the evidence by treating as central the alleged implausibility that the claimant did not understand or foresee that dressing a dog in a mullah’s turban would cause offence. The claimant’s evidence was that the act was intended as an insult to the government. The error concerned a matter regarded by the Tribunal as fundamental and went to the heart of the decision.
4. The adjudicator’s reasoning was expressed briefly but was not so deficient as to require remittal. He had heard and seen the claimant, accepted his account as credible, accepted the dog incident, his political opposition, his detention and ill-treatment, his friends’ arrest, and his father’s political difficulties. Brevity was not itself a defect, particularly where the adjudicator accepted the whole account.
5. Credibility had to be considered in the round. An adverse finding on a central issue could affect the case as a whole. The Tribunal was entitled to refuse fresh evidence where the applicable rules had not been complied with, and there was no breach of natural justice. The burden remained on the claimant to establish his asylum and human-rights claims.

• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal against the adjudicator and remitted the case for a fresh hearing.
• High Court (Administrative Court): quashed the Tribunal’s determination and made a mandatory order requiring the Tribunal to dismiss the Secretary of State’s appeal.