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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MG, Re Application for Judicial Review [2008] ScotCS CSOH_115 (13 August 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_115.html Cite as: [2008] CSOH 115, [2008] ScotCS CSOH_115 |
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OUTER HOUSE, COURT OF SESSION [2008] CSOH 115 |
|
P815/08 |
OPINION OF LORD BRODIE in the Petition of M G (Assisted Person) Petitioner For Judicial Review of
a decision of the Secretary of State for the Home Department dated ________________ |
Petitioners: Stobart; McGill & Co
Respondent: Lindsay; Office of the Solicitor to the Advocate
General
Introduction
[1] The petitioner is M G.
She is married and the mother of a
child. She is designed in the petition
as currently detained in Dungavel Detention Centre. The respondent is the Secretary of State for
the Home Department. The petitioner
seeks judicial review of a decision of the respondent contained in letter dated
14 March 2008 (number 6/2 of process) refusing to treat submissions
made on her behalf in a letter from the petitioner's solicitors dated 13 March 2008
(number 6/1 of process) as a fresh claim for asylum. The petitioner's contention in her petition is
that the respondent's decision was made under error of law. The declarator sought in the petition however
goes somewhat beyond that in that the petitioner seeks to have it declared that
in reaching the decision the respondent acted unlawfully et separatim acted in a manner that is unreasonable and irrational et separatim in breach of section 6
of the Human Rights Act 1998.
"Your client is said to be in
fear of returning to
I reiterate that the decision
to refuse your client asylum on
It remains the case that your
client has a viable internal flight option and can avail herself of the
sufficiency of protection which exists and is provided by the Algerian
authorities. It is evident that your
client is seeking to frustrate the removals process by repeating his [sic]
asylum claim. Taking all the above into
consideration, your representations are rejected and the decision to refuse the
earlier asylum claim on
"We are not persuaded that the
submissions that you have made, taken together with previously considered
material, create a realistic prospect of success. Accordingly, we are not prepared to reverse
the decision of
[7] It is that decision that the petitioner seeks to reduce by way of this application for judicial review.
"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. 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) has not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas."
Submissions
Submissions for the petitioner
[10] Miss Stobart
submitted, under reference to what appears in paragraphs [6], [7], [11]
and [24] of the judgement of Buxton LJ in the cases reported as WM
(DRC) v Secretary of State for
the Home Department [2007] Imm AR 337, that the respondent (through her
official) had applied the wrong tests in
coming to a view as to the reliability of the information contained in three
documents presented as new evidence in support of the submissions made on
behalf of the petitioner, and in determining whether the submissions amounted
to a fresh claim in terms of Rule 353. There was no proper basis for concluding that
the documents were other than genuine. What the respondent should have done but did
not do was to ask the question: if an independent immigration judge took the
view that the documents were genuine whether there was a realistic prospect of
the judge, applying the rule of anxious scrutiny, thinking that the petitioner
would be exposed to a real risk of prosecution on return to Algeria. The respondent had not, as she should have
done, evaluated the documents having regard to the fact that they appeared to
be stamped or sealed, emanated from
Submissions for the
respondent
[11] Mr Lindsay moved me to uphold the first plea-in-law for the respondent and to dismiss the petition. In support of that motion he began by reminding me, under reference to BS (Kosovo) v Secretary of State for the Home Department [2007] EWCA Civ 1310 and Miller Petitioner [2007] CSOH 86, that the approach of the court on judicial review is that the discretionary remedy of reduction will not be granted where no useful object would be achieved thereby. Thus an error of law by a decision-maker will not justify reduction of his decision if, in the absence of error, the same decision was inevitable. In other words if there was only one possible answer then it is irrelevant if the decision-maker has come to that answer for the wrong reason. It was, however, Mr Lindsay's primary submission that the respondent had made no error in refusing to treat the petitioner's representations as a fresh claim. The respondent had concluded that reliance should not be placed on the new documents but had considered the representations on the basis that they were valid, viewed them as indicating the existence of a framework for legal protection and pointed to the provision of protection provided by the Algerian authorities as negating the petitioner's asylum and human rights claims. Mr Lindsay reminded me that a claim will only be available under the Refugee Convention or article 3 of the European Convention on Human Rights where the claimant's state fails to provide reasonable protection. Reasonable protection did not require an absolute guarantee of safety. In the present case the petitioner's claim had been refused by reason of , inter alia, the availability of state protection. Submission of the additional material had only, as Mr Lindsay put it, made it worse for the petitioner in that it tended to support the view that state protection was available. At best for the petitioner there was nothing in the new material to suggest that the Algerian authorities were unwilling or unable to provide protection.
[12] Mr Lindsay
took me to the previous considerations of the petitioner's claim, first in the
respondent's letter of
[14] There is no dispute between Miss Stobart and Mr Lindsay as to what is the applicable law. That is set out in paragraph [11] of the judgement of Buxton LJ in WM (DRC) v Secretary of State for the Home Department supra. Subject to a pleading point, which I will come to, the issue as to whether the respondent is to be taken to have made an error in law depends on how the not entirely felicitously expressed letter of 14 March 2008 is read.
"To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an [immigration judge] to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant by the previous [immigration judge]. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be automatically suspect because it comes from a tainted source."
[16] I rather doubt whether that, properly speaking, falls to be regarded as a rule of law. However, I would agree with Miss Stobart that in the present case the respondent does seem to have fallen into the potential error identified by Buxton LJ in the second of the two sentences quoted above. Important as I consider it to be that the points to be made in an application for judicial review are clearly identified in the petition, in all the circumstances of the present case I am prepared to accept Miss Stobart's submission that the respondent's rejection of the new material as unreliable was in error. This does not appear to me to be a case such was posited by Collins J in Rahimi v Secretary of State for the Home Department [2005] EWHC 2838 where it can be said that the information in the material was intrinsically incredible or that, looking at the whole case, it could not reasonably be believed. Nor, as I have endeavoured to explain, is it a case where it can be said that the documents are clearly not genuine in the sense of obviously not emanating from their ex facie authors. Accordingly, whether the respondent falls to be regarded as having fallen into error of law, as having failed to give proper reasons or as having acted irrationally, her decision insofar as based on her conclusion that reliance should not be placed on the documents is unsustainable. That, however, is not an end to the matter. The decision letter includes the sentence: "However, even if the documents are accepted as valid, they imply a reliance on legal processes which represent a framework for legal protection." As I understood him, Mr Lindsay pointed to that sentence as indicating that the respondent had considered the submissions made on behalf of the petitioner on the hypothesis that documents were genuine and information contained within them accurate. Agreeing with him up to a point, I also understood Miss Stobart to read the decision letter as including a consideration of the submissions, albeit not by reference to the correct test. That the respondent did in fact consider the submissions on the hypothesis that the documents were genuine and accurate may indeed be the proper conclusion, given the terms of the penultimate paragraph of the decision letter, following as it does a paraphrase of Rule 353. I am not be inclined to differ with counsel on that. But if that is so I am not persuaded that the respondent can be shown to have erred by failing to apply the correct test as explained in WM (DRC) v Secretary of State for the Home Department supra at 341 to 342 (paragraphs [11] and [12]). I recognise the distinction, emphasised by Miss Stobart, between the Secretary of State forming a favourable view on the merits of the claim, as enhanced by the new material, and the Secretary of State forming a view as to the realistic prospect that an immigration judge might form a favourable view of the claim, having given the matter anxious scrutiny. I accept that the decision is stated relatively briefly without the approach which has been followed having been spelled out in the way one might anticipate in a judicial opinion. Nevertheless, I would regard it to be clear that what the respondent had in view was realistic prospect of success before an immigration judge. I see it as difficult to interpret "realistic prospect" as other than a reference to a hypothetical future decision by a different decision-maker. Agreeing with Mr Lindsay, I do not regard the respondent's conclusion as Wednesbury unreasonable, given the material before her.
[17] Mr Lindsay
founded upon the fact that there had been nothing in the new material to
displace the finding of sufficient state protection by the immigration judge. I understood him to take that as a point
available to him even if I was against his primary submission that the
respondent made no error in her decision. From my reading of the decision letter,
assuming that the respondent did indeed consider the submission on the basis
that the documents were genuine, which is how parties encouraged me to approach
the matter, it not clear to me that the respondent took the availability of
state protection to be a free-standing point. Rather, I see her as having rolled it up as
part of her assessment of "the submissions ...made". Be that as it may, I take it to be clear that
the respondent did consider the availability in Algeria of "a framework of
legal protection" as being relevant to her conclusion that the submissions made
on 13 March 2008, together with the previously considered material
did not create a realistic prospect of success. Agreeing with Mr Lindsay, I see it as
reason not to grant decree of reduction of a decision simply because of some
flaw in the decision-making process if the final decision was inevitable,
irrespective of the flaw. I take as
accurate the summary of the law as to risk of persecution or of article 3
ill-treatment contained in the judgement of Auld LJ in the decision of the
Court of Appeal in R (Bagdanavicius)
v Secretary of State for the Home
Department [2004] 1 WLR 1207, which follows Horvath v Secretary of State
for the Home Department [2001] 1 AC 489 and is cited and discussed in
the decision of the Asylum and Immigration Tribunal in IM (Sufficiency of protection) Malawi [2007] UKAIT 00071 at
paragraphs 17 to 19 and 36 to 45. It is for the claimant to show a well-founded
fear and a systemic insufficiency of state protection in the face of a threat
from non-state agents. Here the
immigration judge found there to be sufficient state protection in
[18] As I see it the issue comes to be quite narrow: was the respondent on the submission of what was said to be a fresh claim entitled to come to a view on the availability of state protection in relation to the present case and, by reason of that view, determine that the submissions taken together with the previously considered material did not create a realistic prospect of success? I understood Miss Stobart to submit that the answer should be no. It was her position that the question of sufficiency of protection was to be dealt with by the immigration judge who would look at the new documents, decide what they meant and make a determination on the risk of persecution on the basis of all the material then before him, always being mindful of the need to exercise anxious scrutiny. I have no quarrel with this summary of the task of the immigration judge once further submissions have been determined to amount to a fresh claim, but the decision as to whether further submissions amount to a fresh claim is for the Secretary of State, her decision only being challengeable by way of judicial review on Wednesbury grounds: WM (DRC) v Secretary of State for the Home Department supra at 341 (paragraph [9]). In order to make that decision the Secretary of State has to consider the new material, together with that which has previously been considered. Among the issues to be had regard to in determining whether the submissions create a reasonable prospect of success is the availability of state protection. Here the respondent clearly did consider this issue and did so on the hypothesis that the documents relied on were "valid" which in context must mean at least genuine in the sense of including documents emanating from the police in Algeria. That appears to me to be the only reasonable meaning of: "However, even if the documents are accepted as valid, they imply a reliance on legal processes which represent a framework for legal protection" and, later in the decision letter: "It remains the case that your client ... can avail herself of the sufficiency of protection which exists and is provided by the Algerian authorities." Accepting that sufficiency of state protection requires more than the existence of a police force to which complaints can be made but which does not or cannot act on them, as was explained by Auld LJ in Bagdanavicius, I cannot regard the respondent's decision as Wednesbury unreasonable.
[19] I shall dismiss the petition. I shall reserve all questions of expenses.