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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MK, Re Application for Judicial Review [2007] ScotCS CSOH_109 (26 June 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_109.html Cite as: [2007] ScotCS CSOH_109, [2007] CSOH 109 |
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 109 |
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P1951/05 |
OPINION OF LORD McEWAN in the petition of M K Petitioner; for Judicial Review of decisions by the Secretary of State for the Home Department (i) dated (ii) dated ________________ |
Petitioner: Forrest;
Drummond Miller, W.S.
Respondent:
[2] What
happened next is the essence of the case now before me in the amended Petition
(No 14 of Process) and amended Answers (No 15 of Process). It may firstly be summarised in this
way. After her appeal was refused the
Petitioner alleges she came into possession of new material, placed this before
the Respondent with a request that it be treated on a fresh application. The Respondent twice refused to do so and
later issued directions for her removal.
It is these decisions which the Petitioner wishes to reduce. The argument before me on this matter was in
narrow compass and raised the question of whether the Respondent had applied
the correct test in rejecting her request; whether the reasons he gave were
sufficient and whether the decisions could be challenged on Wednesbury grounds. I was given a number of authorities but only
a few of these were canvassed viz R
(Onibiyo) v Secretary of State for
the Home Department [1996] QB 768; Secretary
of State for the Home Department v Boybeyi
[1997] Imm. A.R. 491 and Ladd v
[4] Miss Carmichael asked me to dismiss the Petition and sustain the Respondent's pleas. She said the question was whether the decision maker was entitled to take the view she expressed in paragraphs 13 and 14 of the letter complained of (27 August 2004, No 6/11 of Process). She was not bound to accept what the Petitioner said at face value. Her reasons for rejecting were cogent. Further, on Wednesbury principles she was entitled to take the view she did. She had considered the statements for the Petitioner and her sister which were contradictory. The sister's statement was dated 20 March and so could have been put to the IAT. (Counsel accepted that errors had been made in the letters from the Home Office, 6/8 and 6/11, but argued that they were not material).
[5] The cases on credibility were not in point. In Boybeyi no decision was made on the Court decree. What was truly in issue was the explanation. Counsel referred me to the Rule in force at the time (Rule 346) and contrasted it with the current Rule.
[6] Let
me turn now to look more closely at events.
I do not have the original Home Office refusal letter. It is not lodged but in the circumstances
that may not matter. It was a decision
on the claim from which she had a right of appeal to the Adjudicator. That appeal was heard at
[7] Then,
however, new information was found. It
arises in this way. On
[8] Why
then were they not produced in
[9] The present petitioner in her statement (6/12 of Process) alleges that she only knew of the existence of these documents after the appeal to the IAT failed and she received copies in June and the originals from "...an airline passenger...". All of this was put to the Home Office and they were asked to treat it as a new claim. It is accepted that they have a discretion about this. Further papers before me deal with her conversion to Christianity but in the circumstances no point has been taken about that.
[10] Let me dwell briefly on the two letters under challenge. No. 6/8 of Process in February narrates the
tests (para 3 and 4). The reason for
refusal is that the summons and opinion were available on
[11] The documents from
[12] I am quite clear that the matter before me raises the first stage of what may have become a two stage process. The Respondent is faced with a decision upon whether the "new" information is a "fresh claim for asylum". It is his function at first instance to decide that and he can only be challenged on Wednesbury grounds (ex parte Onibiyo 785). If he decides that it is a fresh claim, then he has to decide it on the merits and grant or refuse asylum, with all subsequent rights of appeal to the appellate authorities. In the present case the Petitioner has not overcome the first hurdle.
[13] In making his decision the Respondent has to address a number of established tests. He has power to make investigations as was done in Boybeyi (496). He had to, in this case, have regard to Rule 346 asking if the claim is sufficiently different and with a realistic prospect of succeeding. He is entitled to disregard new material which is in-significant, not credible or was available at the time the previous application was refused or any appeal determined. From the cases I conclude that apparent credibility is the test at this stage, not credibility in fact.
[14] I have come to the decision that the petitioner in this matter cannot succeed. The Respondent has considered the proper tests of whether this was a fresh claim. He has not found the sister's statement No. 6/6 to be credible. That is critical since she was aware of the Court Proceedings in December 2002 well before the Adjudicator's March decision the following year. The timing is important because further on in her statement she says it was "later on" that she sent the sentence letter by post and the original with some unknown traveller. The vagueness of all of this is confirmed by the Petitioner's own statement 6/12. In my view the Respondent was entitled to find this not to be credible even on the lower threshold. The Respondent was also entitled to the view that it could and should have been raised earlier. That is enough to dispose of the case. It has to be said that nothing has been said about the actual Court documents in the reasons. I do not think this matters since a failure to believe the sister about their history takes away the apparent seriousness of the sentences given. Accordingly the Respondent has applied the proper tests and has reached a decision which is unimpeachable on any Wednesbury grounds. I will accordingly repel the Petitioners second and third pleas in law and repel of consent her first. I will sustain the two pleas in law for the Respondent.
[15] There is one final matter.
Some time after the case was taken to avizandum the Petitioner handed
into Court some further documents in two sealed envelopes. I have looked at these and considered
them. It is not necessary to convene the
Court for further argument. Some of the
papers relate to her becoming a Christian.
There is another statement from the Petitioner and some further
letters. None of these were before the
Respondent nor could they have made any difference to what he decided. I had to disregard them.