Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00422/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 23 March 2017
On 31 March 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

ASM
[Anonymity direction made]
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the appellant: Ms I Sabic, instructed by Brighton Housing Trust
For the respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant’s appeal against the decision of First-tier Tribunal Judge Fowell promulgated 13.10.16, dismissing on all grounds his appeal against the decision of the Secretary of State, dated 24.2.16, to refuse his protection claim.
2. The Judge heard the appeal on 27.9.16.
3. First-tier Tribunal Judge O’Garro refused permission to appeal on 9.11.16. However, when the application was renewed to the Upper Tribunal, Upper Tribunal Judge Grubb granted permission to appeal on 19.12.16.
4. Thus the matter came before me on 23.3.17 as an appeal in the Upper Tribunal.
Error of Law
5. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Fowell should be set aside.
6. The First-tier Tribunal Judge did not accept that the appellant would be at risk on return to Iran by reason of his (or his family’s) political activities, including demonstrations in London.
7. The grounds assert that the judge did not consider the evidence properly, did not give adequate reasons for his decision, placed weight on immaterial matters, failed to give weight to material matters, and did not properly assess the risk on return.
8. In refusing permission to appeal, Judge O’Garro considered the decision was careful and well-reasoned, setting out the pertinent issues, law and evidence relating to the facts of the appeal. “In appeals of this nature it is the task of the judge to make findings of fact on the basis of the evidence and to provide adequately clear reasons for those findings. That is precisely what the judge did.”
9. “There was ample evidence before the judge from which he was entitled to find that the appellant had fabricated his claim for asylum. At paragraphs 61-64 of the decision, the judge gave clear reasons why he found the appellant not to be a witness of truth. The grounds do not identify any alleged shortcomings in the decision and amount to nothing more than a disagreement with the findings of the judge. They disclose no arguable error of law.”
10. However, in granting permission to appeal, Judge Grubb found it arguable that the judge in two respects:
(a) “By failing to make any findings on the reliability/credibility of the witness who claimed she and the appellant had demonstrated outside the Iranian embassy in London. The judge specifically accepted other aspects of her evidence. But, he said nothing about it’s reliability when making a factual finding against the appellant contrary to her evidence;
(b) “By failing to have proper regard to the expert’s view as to the basis for any risk to the appellant which was arguably not limited to a risk as a result of demonstrating outside the embassy. But, it arguably included his family background and his other London demonstrations.”
11. The Rule 24 response of the Secretary of State, dated 10.1.17, submits that the judge made adequate findings and given adequate reasons, specifically addressing the appellant’s claimed attendance at demonstrations. However, the judge concluded that the appellant did not have a political profile, by such attendance or by virtue of his father’s activities.
12. Having given anxious consideration to the otherwise careful and detailed decision of the First-tier Tribunal, I am not satisfied that there was a material error in the way in which the judge concluded that the appellant had not taken part in a demonstration outside the Iranian embassy.
13. The judge accepted the photographic evidence that the appellant had attended two demonstrations in 2015, one in Parliament Square, the other purporting to be in Trafalgar Square. At [62] the judge concluded that he did not have a political profile by virtue of his father’s activities, or by his attendance at these two demonstrations. The judge then went on to list and address the other factors that may increase his risk on return.
14. However, the appellant’s case was that he had attended two demonstrations in London with Mrs Ahmedi, one outside Parliament and the other outside the Iranian Embassy. His account was somewhat confused, as the judge noted at [51] of the decision. No dates were given, and he appeared to suggest he had also attended two other demonstrations in London.
15. The relevance of the issue as to whether he had attended a demonstration outside the Iranian embassy is that according to the expert witness, Ms Laizer, at such a demonstration he would have been recorded by the CCTV cameras installed on the outside of the embassy for the purpose of taking images of protestors. In combination with other factors, this would give rise to a political profile which would result in adverse attention of the Iranian authorities on his return. It was therefore central to the appellant’s case on political profile as to whether he was able to demonstrate to the lower standard of proof that he had been at a demonstration outside the Iranian embassy.
16. At [26] onwards the judge assessed the evidence of Mrs Ahmedi, which was to the effect that the appellant continues to support Komala and that they had occasionally attending demonstrations together in London. She produced two photographs of the appellant at a demonstration on 20.6.15 and had another image on her phone of him at a different demonstration. She also had video of a demonstration which she said was outside the Iranian embassy. She claimed that the appellant was present and filming the event, but he did not appear in the recording she had made. No recording made by the appellant was adduced in evidence.
17. The judge considered the issue of the appellant’s engagement in political activity from [50] onwards, and accepted, as stated above, that he had attended two such demonstrations in 2015. As noted above, the judge also found the appellant’s account as to attendance at demonstrations was unclear and was not satisfied that one of those was at the Iranian Embassy. I do not accept the submission that the judge failed to take into account the evidence of Mrs Ahmedi. Not only had the judge noted her evidence with its difficulties or limitations at [26] to [27] of the decision, including the assertion that she attended an Iranian embassy demonstration with the appellant, but at [52] the judge returned to this issue. There, the judge noted the solicitor’s letter of 2014 asserting that he had, with Mrs Ahmadi, openly demonstrated outside the Iranian Embassy, and enclosing his earlier witness statement to that effect. The judge noted that this statement claimed attendance at demonstrations organised by the PKK, which was not mentioned in his most recent statement, and was at odds with his claim to be at risk because of Komala involvement. I am satisfied that the judge did not ignore Mrs Ahmedi’s evidence, but when taken as a whole, in the round, as the judge was required to do, taking into account her claim that the appellant had been there, but also the lack of photographic or video evidence to confirm, together with the appellant’s own confused account, the judge was not persuaded to the lower standard of proof that he had been present. In reaching this conclusion the judge was satisfied that he would not have been present without taking any photographs or other record of his attendance. The judge concluded that he had attended the two other demonstrations and taken care to be photographed there, for the purpose of bolstering his asylum claim. It was not necessary for the judge to specifically state that he did not find Mrs Ahmedi credible on this issue, as the judge considered the evidence in the round, in the context of the whole before reaching a conclusion. I find no error of law in this regard.
18. In her submissions Ms Sabic drew my attention to the update from [3] at A107 of the appellant’s bundle and in particular, [3(a)(i)] and [3(a)(viii)], relating to the Westernisation of the appellant since his arrival some 8 years ago at age 15, and the suggestion that his link to Mr Abdularahman, said to be a senior functionary in the Komala organisation, “would carry more adverse attention that his father’s past alleged KDP role.” It was submitted that the judge did not make a finding as to the appellant’s alleged Komala involvement. It was also submitted that the judge may have looked at individual factors, but did not address the cumulative effect of these factors on the risk on return on the basis of a political profile.
19. For the reasons set out herein, I do not accept those submissions reflect a proper reading of the decision of the First-tier Tribunal. In particular, I find that the judge has taken all due account of the expert evidence of Ms Laizer, which is carefully referred to in the decision.
20. From [55] onwards the judge explained that he had considered the expert evidence with care. I bear in mind in reaching this conclusion that in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49, [2011] at [45] Lord Dyson, after endorsing Lady Hale’s approach in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, stated that “where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account”. Lady Hale had stated, inter alia, “appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.”
21. At [56] the judge considered the basis on which the expert opined that the appellant would be at risk on return, setting out the instructions given to her as to the appellant’s factual claim. These included that his family’s political profile included that his father was a dissident who supported KDPI and that his UK relatives support Komala. Also relied on was the claim that the appellant had attended demonstrations outside the Iranian Embassy in London at which he would have been recorded.
22. In respect of his father, the Judge noted that the claim that his father had a political profile as a KDPI member had been implicitly abandoned, after the finding at the previous appeal hearing that he had sought to embellish his account. He had also claimed to be at risk from the Mujahadin, which had also been rejected and subsequently abandoned. The judge also noted that his father could only have been 15/16 years of age at the time of the revolution and when he claimed they fled Iran in 1979, and could not have developed a political profile. He was also remarkably uninformed about the claimed KDPI involvement of his father. The previous Tribunal was not satisfied that his father and still less the appellant had any political profile.
23. It is significant that the judge did not simply adopt the findings of the previous First-tier Tribunal decision, stating at [42] that it was necessary to reconsider the conclusions drawn in light of the evidence heard. Judge Fowell then went on to find in the appellant’s favour in relation to the claim that he was born in the Al-Tash refugee camp in Iraq and lived there until 2005, and thereafter nearby in Ramada, until he came to the UK in 2008. All of this suggests a careful and anxious scrutiny of the evidence with findings supported by cogent reasoning.
24. From [62] of the decision onwards the judge considered the potential risk factor based on the assertion that Mrs Ahmedi’s husband is a leading member of Komala. However, the judge found that the appellant was only distantly related to Mrs Ahmedi, a relationship the precise nature of which has still not been explained, even to me at the Upper Tribunal appeal hearing. Mrs Ahmedi claimed that her husband helped to politicise him and that they see each other when he is in the UK. The judge was doubtful of the degree of contact and in the absence of recent credible evidential support, the judge concluded at [63] that the husband, Mr Abdularahman is rarely in the UK and at the highest the appellant has had no direct contact with him in person or by correspondence for several years. It follows that the judge discounted this alleged risk factor, and went on from [64] to find that the other factors are not, even taken cumulatively, sufficient to demonstrate to the lower standard of proof a political profile. By implication, this finding also addresses the appellant’s alleged Komala involvement. However, at [49] the judge considered this part of the claim in detail. Even though the judge accepted that Mr Abdularahman is a senior emmber of the Komala Party, he found serious concerns with the evidence relied on, reaching the conclusion that, “The most likely explanation appears to be that the claims made in the email (Mr Abdularahman’s email of February 2014) are exaggerated with a view to helping the appellant’s cause.”
25. The judge also found at [64] that there was no evidence of any online political activity that would expose him to risk and lead him to be interrogated on return to Iran, or that any such interrogation would lead to detention.
26. All of this bears on the utility of the expert evidence of Ms Laizer. It was not just the two factors discounted by the Judge at [57], addressed previously, but also the suggestion that he would be at risk because of Komala support by his UK relatives or any online political activity. The judge considered both the original report and the update. Some parts of the evidence, particularly in relation to the camp were accepted. In the circumstances of this case and the judge’s factual findings, I find that it was entirely open to accord little or limited weight to the expert report.
27. I am also satisfied that the decision of the First-tier Tribunal was entirely consistent with both SB (risk on return – illegal exit) Iran CG [2009] UKAUT 00053, BA (Demonstrations in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), and the more recent decision of SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC).
28. It follows that the judge has given careful and anxious scrutiny to the evidence, making appropriate findings open to the Tribunal and justified by cogent reasoning. The grounds of appeal are a disagreement with the decision, an attempt to dissect it finding fault with the separate parts, but failing to consider the overall assessment made by the First-tier Tribunal. In essence, the grounds are an attempt to reargue the appeal. A different judge may have come to different conclusions, or set out the decision differently, using different expressions, but that is not the basis upon which the Upper Tribunal should interfere with the decision.
29. It is not necessary for the judge to make specific findings on every factor, provided it is clear that there has been a careful and anxious scrutiny and that relevant factors have been considered and irrelevant factors left out of account. On the facts of this case, and for the reasons set out herein, I find no material error of law sufficient to require the decision to be set aside.
Decision
30. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains dismissed on all grounds.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. However, the First-tier Tribunal made an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014. Given the circumstances, I continue the anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: No fee is payable and thus there can be no fee award.

Signed

Deputy Upper Tribunal Judge Pickup

Dated