Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00427/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 February 2017
On 26 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

MLB
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss S Khan, of Counsel, instructed by Parker Rhodes Hickmotts Solicitors
For the Respondent: Ms R Pettersen, Home Office Presenting Officer

DECISION AND REASONS
Anonymity
The First-tier Tribunal made an anonymity order. I have not been invited to rescind that order. The order remains appropriate as this is a protection claim.
Background
1. This is an appeal against the decision of First-tier Tribunal Judge Hindson promulgated on 16 November 2016 dismissing the Appellant’s appeal against a decision of the Respondent dated 26 March 2016 refusing his claim for international protection.
2. The Appellant is a citizen of Guinea. He last arrived in the United Kingdom (UK) on 28 July 2011 and first claimed asylum on 29 July 2011. His application was refused and his appeal against that refusal was heard by First-tier Tribunal Judge Caswell and dismissed in a decision promulgated on 20 September 2012. Further submissions were lodged by the Appellant on 24 September 2013. These submissions were accepted as a fresh claim but refused in a decision dated 26 February 2016 with a right of appeal.
3. The Appellant’s appeal against that decision in consequence of the refusal of asylum was dismissed by First-tier Tribunal Judge Hindson. The basis of the Appellant’s claim in summary was that he and his father were supporters of the opposition party in Guinea – the UFDG. The Appellant entered the UK in 2005 as a student and returned to Guinea in May 2011. While there, he and his father were arrested and mistreated by the authorities because of their support for the UFDG. The Appellant escaped and fled to the UK and claimed asylum, which was subsequently refused. The Appellant’s appeal against that refusal was heard by Judge Caswell who dismissed the appeal for the reasons set out in her decision. Essentially, she rejected the credibility of the account.
4. Before Judge Hindson the Appellant introduced further elements to his asylum claim supported by documentary evidence. He produced evidence of his presence in Guinea in 2011 and supporting letters from the UFDG confirming his membership, arrest and detention, and his involvement in UFDG activities in the UK. Updated medical evidence was also placed before Judge Hindson indicating the Appellant continued to suffer from PTSD.
5. Judge Hindson relied on the findings of Judge Caswell as his starting point and considered the fresh evidence in light of those findings. He also did not accept the credibility of the Appellant’s account and otherwise found that he had not established his claim for international surrogate protection and dismissed his appeal accordingly.
6. The Appellant sought permission to appeal which was granted by First-tier Tribunal Judge M J Gillespie on 9 December 2016 in the following terms:
“The grounds are fairly arguable and if sustained might disclose material errors of law.”
7. The Respondent opposed the appeal in a rule 24 response dated 29 December 2016.
Decision on Error of Law
8. I turn then to a consideration of Judge Hindson’s approach to the issues that are at the core of the Appellant’s challenge to the conclusion in his appeal.
9. It is apparent from the decision that Judge Hindson directed himself to the case of Devaseelan (Second Appeals – ECHR – Extra-Territorial Effect) Sri Lanka* [2002] UKIAT 00702: see paragraph [19]. The decision in the case of Devaseelan is a matter of record and accordingly it is unnecessary for me to set out the guidelines here.
10. While Miss Khan did not expressly refer to Devaseelan in her grounds, she agreed with my observation that her challenge to the decision of Judge Hindson was essentially that he misapplied the principles therein.
11. Judge Hindson commenced his consideration (rightly) by reminding himself that Judge Caswell had rejected the credibility of the Appellant’s claim. He went on to address the fresh evidence put before him that was not before Judge Caswell. That evidence included original bank statements from Guinea, which Judge Hindson accepted as sufficient evidence to prove the Appellant’s presence in Guinea in 2011, but found that this was not sufficient to depart from Judge Caswell’s findings who advanced various other reasons for disbelieving the Appellant’s claim. There is and can be no quarrel with this approach which is in-line with the Devaseelan guidelines.
12. Miss Khan complains that Judge Hindson’s treatment of the UFDG letters was in error because it was unclear why he rejected that evidence for the reasons that he gave. In my judgement, this ground is misconceived.
13. At paragraph [26] – [27] Judge Hindson considered the letters from UFDG dated 18 June 2013 and 26 October 2016, respectively. The author purported to confirm, among other things, through enquiries made with the UFDG in Guinea, the Appellant’s membership; and the arrest and detention of the Appellant and his father in 2011. Judge Hindson considered this evidence and concluded thus at [27]:
“I do not find the letters from Mr Diallo sufficient to persuade me to depart from Judge Caswell’s findings. The information is vague and the sources of it are not explained. Mr Bah was unable to tell me anything about events in Guinea.”
14. Miss Khan submits that this reasoning is simply inadequate and that the source and provenance of the information was clear.
15. Judge Hindson’s conclusion at [27] must be read however in conjunction with what he said in the preceding paragraph. At [26] Judge Hindson inter alia said this:
“The appellant has provided a letter from the UFDG in the UK signed by a Mr Abraham Diallo in 2013. In it he purports to confirm that the appellant and his father were arrested in 2011 for political reasons and that his father is still missing. This letter was not before Judge Caswell, indeed there was no evidence from the UFDG available to her. The appellant told me this was because he was not asked to provide such evidence, which I find surprising. The letter was vague as to how this information was obtained……”
16. The 2013 and 2016 UFDG letters respectively stated, inter alia, as follows:
“Secondly, I have made some enquiries relating to the case of [the appellant] and I received some information from the UFDG in Guinea. From the information, I have gathered from the Party in Guinea, I understand that [the appellant and his father] had been arrested in Conakry, in July 2011.”
“As for [the appellant’s father], I have spoken to the Party’s HQ in Guinea and they do not have any news relating to his whereabouts….. Mr Bano Sow who is Vice-President of the UFDG in charge of Political Affairs informed me that sadly, [the appellant’s father] is not alone in this situation.”
17. Miss Khan complains that Judge Hindson was not entitled to conclude as he did because the source of the information was clear. In my judgement, Miss Khan’s challenge is a disagreement with Judge Hindson’s findings dressed up as an error of law. Judge Hindson took the evidence fully into account and his conclusion was neither unclear or irrational. The author did not set out in any detail the nature and extent of his enquiries or, what enquiries had been made by the party in Guinea and indeed by whom. Miss Khan in her submissions appeared to suggest that the source of the information was Mr Bano Sow, but that is certainly not clear from the evidence. I am thus of the view that Judge Hindson’s conclusion that the evidence was vague and the source unexplained was entirely open to him on the evidence that was before him. I am not satisfied that there is a material error of law in Judge Hindson’s assessment of this evidence.
18. The same can be said for Judge Hindson’s treatment of the medical evidence, about which there is further complaint. Miss Khan submitted that Judge Hindson’s assessment was “deeply flawed” as he failed to make clear findings on the appellant’s medical condition, which was relevant to his assessment of credibility. In my judgement, this is again a disagreement with the findings made and fails to disclose a material error of law. Judge Hindson rightly noted the medical evidence before Judge Caswell, which claimed the appellant suffered from PTSD as a result of the treatment he suffered whilst in detention. Judge Hindson further noted the finding of Judge Caswell that the medical evidence was not probative of the appellant’s account [28]. Independent of that, he proceeded nevertheless to consider up-dated medical evidence which supported the diagnosis of PTSD at [30] – [32] and stated thus:
“I do not find that this evidence takes the appellant’s case any further. Judge Caswell had the benefit of a comprehensive report from a consultant psychiatrist. She rightly rejects it as evidence of the appellant’s credibility. She does not expressly accept the diagnosis but neither does she reject it. The additional evidence does no more than confirm Dr Hindson’s diagnosis. I do not accept that Judge Caswell would have come to any different conclusion if she had had this evidence before her and I find no reason for departing from her findings.
I have so far looked at the individual pieces of new evidence separately and concluded that none persuades me that I can depart from the findings of Judge Caswell. I have also considered their cumulative effect and come to the same conclusion.
I am not satisfied that the new evidence is such that I can or should depart from the findings of Judge Caswell.”
19. In my judgment that was an approach entirely open to Judge Hindson. He was clearly alive to the approach required under the guidelines in Devaseelan and essayed an application of those guidelines to the facts and circumstances of this appeal. In my judgment, Judge Hindson reached an evaluation as to how those guidelines should be applied to this appeal that was entirely within the remit of his judgment.
20. Moreover and in any event Judge Hindson – considered all of the evidence for himself, and specifically that “it is settled law that determining credibility is for the Judge, not the writers of such reports,….”at [29] - set out further analysis in respect of the appellant’s credibility by reference to supporting documents (see paragraphs 33 and 35), leading him to the adverse conclusion at [36]. In the context in which he gave his decision, it is clear he was alive to the diagnosis of PTSD.
21. In my judgment, while further and more detailed reasons could have given by Judge Hindson, Miss Khan’s arguments that his findings were unclear, irrational or otherwise not open to him is essentially a disagreement with the Judge’s evaluation of the approach to be taken within the Devaseelan guidelines. It does not, I find, identify an error of law. In all those circumstances, I find that the decision of Judge Hindson is not in any way flawed for error of law, but in fact is a comprehensive attempt to address all of the issues raised by the appellant including the approach to be taken to Judge Caswell’s decision in light of the fresh evidence.

Decision
22. The decision of the First-tier Tribunal contained no error of law and stands.
23. The appeal remains dismissed.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 20 April 2017

Deputy Upper Tribunal Judge Bagral