Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA008422015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 26 April 2016
On 15 June 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

n l
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr H Dieu, Counsel
For the Respondent: Mr I Richards, Home Office Presenting Officer

REMITTAL AND REASONS
1. I make an anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended) in order to protect the anonymity of the appellant who claims asylum with his family. This order prohibits the disclosure directly or indirectly (including by the parties) of the identity of the appellant. Any disclosure and breach of this order may amount to a contempt of court. This order shall remain in force unless revoked or varied by a Tribunal or court.
Background
2. The appellant is a citizen of the Democratic Republic of the Congo (DRC) who was born on [ ] 1977. He arrived in the UK on 3 October 2013 together with his wife and two children. The appellant claimed asylum with his family as his dependants.
3. The basis of the appellant's claim was (and is) that he was involved with the NGO called Toges-Noires in the DRC since 2000. As a result of his political activities, he claims that he was arrested and detained on two occasions in the DRC namely on 20 May 2011 and 16 September 2013. The latter detention, he claimed, arose as a result of an appearance on 10 September 2013 as a panel member on [ ] Television.
4. On 12 December 2014, the Secretary of State refused the appellant's claim for asylum and humanitarian protection and on human rights grounds. On 19 December 2014, the Secretary of State made a decision to remove the appellant by way of directions to the DRC.
The Appeal to the First-tier Tribunal
5. The appellant appealed against the latter decision to the First-tier Tribunal. In a determination promulgated on 6 July 2015, Judge Holder dismissed the appellant's appeal. Whilst Judge Holder accepted that the appellant had been a member of Toges-Noires since 2000 the judge rejected the appellant's claim that he had been arrested and detained on two occasions, namely on 20 May 2011 and 16 September 2013 and had been mistreated during that detention. On the basis of those findings, Judge Holder concluded, applying the country guidance decision in BM and Others (returnees - criminal and non-criminal) DRC CG [2015] 00293 (IAC), that he was at risk on return because of his political activities. Judge Holder found that he did not have a significant political profile in the DRC. He was a rank and file member rather than a leader, office bearer or spokesperson of Toges-Noires.
6. In addition, Judge Holder dismissed the appellant's appeal under Art 8 of the ECHR.
The Appeal to the Upper Tribunal
7. The appellant sought permission to appeal to the Upper Tribunal on a number of grounds in respect of the judge's decision to dismiss the appellant's claim for international protection. No challenge was brought to the decision to dismiss the appeal under Art 8.
8. The grounds seek to challenge the judge's reasoning in para 35 that led him to his adverse factual finding that the appellant had failed to establish that he had been arrested or detained and ill-treated in the DRC. Secondly, the grounds argue that the judge failed properly to apply the country guidance case in BM and Others.
9. Permission to appeal was initially refused by the First-tier Tribunal but on 17 September 2015, the Upper Tribunal (UTJ McWilliam) granted the appellant permission to appeal on all grounds.
10. On 7 October 2015, the respondent filed a rule 24 response seeking to uphold the judge's adverse credibility finding and his conclusion that the appellant did not fall within any risk category identified in BM and Others.
11. Thus, the appeal came before me.
Discussion
12. The focus of Mr Dieu's submissions, based upon the detailed grounds of appeal, was upon the judge's adverse factual finding and reasoning in para 35 of his determination which I set out in full as follows:
"35. I do not find that the Appellant received an arrest summons or that he was detained at all or was ill-treated by the DRC police or the DRC authorities, I say this given the cumulative effect of the following:
i) it can be seen from paragraph 5.1 and 5.2 the Appellant's screening interview that he stated that he had never been arrested of any offence in any country.
I would have expected the Appellant to have mentioned being arrested and tortured on two occasions when answering the questions posed in paragraph 5.1 and 5.2 of the Appellant's screening interview had those events happened. I do not accept the Appellant's explanation at the hearing that he misunderstood the questions given that those questions were straightforward and understandable;
ii) the Appellant states that he received an arrest summons in respect of the first arrest. He has not produced such a document notwithstanding he asserts that had had it in his possession. I would have expected him to produce it or a copy had one existed. He is still in contact with persons in the DRC;
iii) the documents/emails from Toges-Noires make no mention of the Appellant ever having been arrested, detained and tortured in the DRC. I would have expected some mention of the alleged events had they happened.
iv) given the above, I do not find that any scar that the Appellant may have is as a consequence of torture. There is n o medical evidence;
v) there is no evidence to show that the Appellant appeared on a television programme on 10th September 2013. I would have expected some evidence showing that the Appellant participated in that programme had it been the case. The Appellant is in contact with persons in the DRC;
vi) I do not find it credible that the Appellant was released from the alleged detention commencing 16th of September, 2013 by an unknown person as a result of a cousin (or, as he was to state at the hearing, someone associated with a woman he knew in the fish business with whom he is still in contact). There is no evidence from any of those persons. I would have expected some evidence to confirm the scenario had the event happened;
vii) I find that the document produced relating to Karthick Eliezer and the other documentation produced by the Appellant does not show that it is reasonably likely that the Appellant appeared on the asserted television programme or was the subject of arrest, detention and torture; and
viii) the Appellant's wife states that she witnessed both arrests and that she was assaulted on both occasions. She asserts that she was raped on one occasion in front of her children by one of those persons involved in the arrest of her husband. She maintains that she has sustained injuries to her back and has been left with scars. There is no medical evidence submitted.
Given my findings in i) to vii) above, I find that the Appellant's wife was not assaulted as asserted or at all."
13. Mr Dieu sought to challenge the judge's reasoning in paras 35(i), (ii), (iii), (iv), (v) and (viii). He raised no challenge to the reasoning in para 35(vi) and (vii).
14. In relation to the six points raised by Mr Dieu for the reasons that follow I accept his challenge to the judge's reasoning in paras 35(i), (ii) and (viii) but not in respect of para 35(iii), (iv) and (v).
15. Dealing with the former first, in respect of para 35(i) Mr Dieu submitted that the judge had failed to consider the entirety of the appellant's screening interview. Although the appellant had said in paras 5.1 and 5.2 of the screening interview that he had not been arrested, charged, convicted of any offence or been subjected to any arrest warrant in any other country, in para 4.2 he had (consistently with his claim) twice stated that he had been arrested and tortured in the DRC. There he said, inter alia,:
"I was tortured and arrested illegally. Because I am a defender of human rights and also I was defending the TUTSI minority tribe in my country, that is why I was tortured and arrested."
16. Mr Dieu submitted that the judge had failed to consider this aspect of the appellant's evidence when counting against him, in assessing his credibility, that he had never mentioned that he had been arrested for any offence in any country.
17. In my judgment, in para 35(i) the judge did fail to consider the whole of the appellant's evidence, particularly in his screening interview and answer at question 4.2 and, therefore, proceeded on the basis that the appellant had never stated that he had been arrested. That was not the appellant's evidence. Indeed, the apparent conflict between what was said by the appellant in question 4.2 and then in questions 5.1 and 5.2 was, in my judgment, have been relevant in assessing his explanation (rejected by the judge) that in his answers at question 5.1 and 5.2 the appellant had misunderstood the question in the sense that he thought he was being asked about any country other than the DRC. That explanation might be thought to be more plausible when his answer to question 4.2 is considered.
18. Secondly, as regards para 35(ii) Mr Dieu submitted that the judge was wrong to count against the appellant that he had not produced an arrest summons despite the fact that he once "had had it in his possession". The appellant's evidence before the judge was that he had had an arrest warrant in relation to his claimed first arrest in May 2011 but had handed it over to the police in the UK. In other words, the appellant was saying that he no longer had the arrest warrant to produce either as an original or a copy.
19. Mr Richards submitted that the judge had clearly been aware that the appellant had once had an arrest warrant but since the appellant was still in contact with persons in the DRC he was entitled to take into account that none had been produced.
20. Whilst in principle the absence of a document which an individual could reasonably be expected to produce is a matter which can be taken into account in assessing credibility (see, TK (Burundi) v SSHD [2009] EWCA Civ 40), in this case given that the appellant claimed he had handed the relevant arrest summons to the UK police, it was not open to the judge to take its absence into account unless he did not accept the appellant's explanation given in his evidence that he had handed it over to the police. The judge does not appear to deal with the appellant's evidence that he handed the document to the UK police and, in those circumstances, he was, in my judgment, in error in taking into account against the appellant the absence of that document at the hearing.
21. Thirdly, in para 35(viii), the judge deals with the evidence given by the appellant's wife. His conclusion is that: "given my findings in (i) to (vii) above, I find that the appellant's wife was not assaulted as asserted or at all." The assault was relevant to the appellant's account of what he claimed had happened to him in the DRC.
22. Mr Dieu raised two points in relation to this. First, the judge misstates the evidence of the appellant's wife where he says that her evidence was that she was "raped on one occasion in front of her children by one of those persons involved in the arrest of her husband". Mr Dieu pointed out that in her witness statement the appellant's wife had not said that she had been raped. Instead, having referred to her husband's arrest on the second occasion after having taken part in the television programme she said: "this serious incident that could have led me to being raped in my own house and in front of my children." Secondly, and more fundamentally, Mr Dieu submitted that the judge had given inadequate reasons for rejecting the evidence of the appellant's wife simply on the basis of his reasoning that had led him to reject the appellant's evidence.
23. Mr Richards submitted that having heard the appellant's wife give evidence the judge was entitled to conclude her evidence did not displace his negative credibility finding.
24. There is no doubt that the judge misquotes the evidence of the appellant's wife. In itself, that is not an error that goes to the substance of the judge's reasoning. However, the appellant's wife gave evidence and a written statement was also provided and the judge does not given an independent assessment of the credibility or of her veracity. Whilst I accept Mr Richards' submission that the judge could take into account any view he formed of the appellant's wife in giving evidence, no such view is expressed in the determination. The sole basis upon which her evidence is rejected is the basis upon which, in effect, the judge reject the evidence of the appellant. The judge was required to assess independently the evidence of the appellant's wife and provide adequate reasons for rejecting her evidence if that was his conclusion. In failing to do so, the judge erred in law.
25. Having accepted Mr Dieu's submissions in relation to para 35(i), (ii) and (viii), I deal briefly with the remainder of his challenges to para 35(iii), (iv) and (v).
26. As regards para 35(iii) the judge was, in my judgment, entitled to take into account that the email dated 15 June 2015 from the Toges-Noires organisation, whilst acknowledging the appellant's involvement with that organisation, fails to refer to the fact (as the appellant claims) that he was arrested and ill-treated on two occasions. Mr Dieu submitted that the judge had attached "far too much significance" given the circumstances in which the email was written. As I pointed out to Mr Dieu that is, in effect, a challenge based upon irrationality. Although the email states that the writer may have more to add, I do not consider that it was irrational for the judge to place weight upon this letter and the absence of any mention of arrest or ill-treatment.
27. In relation to para 35(iv), in assessing the relevance of any scarring on the appellant, and the only evidence Mr Dieu could draw to my attention was in answer to question 169 of the asylum interview that the appellant had "a scar (lower abdomen)", the judge was entitled to take into account that there was no medical evidence to support the cause or potential causes of the scar.
28. Finally, as regards para 35(v) Mr Dieu submitted that the judge had been wrong to state that there was no evidence to support the appellant's claim that he appeared on a television programme on 10 September 2014 and that the judge would have expected some evidence of the appellant's participation if that had been the case. Mr Dieu drew my attention to a document which (and this was not disputed by Mr Richards) demonstrated that two journalists involved with the television channel (and as I understand it the programme) had been arrested shortly after the programme. Mr Dieu submitted that it was not proper, therefore, for the judge to criticise the appellant for not having obtained supporting evidence of his involvement.
29. The difficulty with Mr Dieu's submission is that the appellant himself in his asylum interview, when recognising that he had not obtained a copy of the show, accepted that: "If I needed, they could have done it but I didn't ask." The appellant's own evidence was that there was no difficulty in him obtaining evidence of the programme (and therefore his involvement) but simply that he had not tried to do so. The fact that journalists involved had been arrested, whilst potentially creating some difficulty for the appellant, did not on his own evidence lead to him not producing any supporting evidence of his involvement. The judge was entitled to take into account the absence of this evidence in those circumstances.
30. In his submissions, Mr Richards submitted that the judge had made proper conclusions and had given proper reasons for those conclusions. He was entitled to reach his adverse credibility finding giving each part of the evidence the weight to be considered appropriate. There was no irrationality in his conclusions or in the way he reached those conclusions.
31. As I have already indicated, I have concluded that there are a number of errors in the judge's reasoning in paras 35(i), (ii) and (viii). Whilst I accept that the judge gave further reasons for his adverse finding, none of the reasons appears to have been conclusive. Rather, the judge's ultimate finding is as a result of an accumulation of these reasons for rejecting the appellant's account that he had been arrested, detained and ill-treated as he claimed although it was accepted that he was a member of the Toges-Noires. Standing back and looking at the judge's reasons for his adverse finding overall, I am not confident that the judge would have reached the same conclusion once the reasoning in paras 35(i), (ii) and (viii) is excised. In my judgment, the errors disclosed by those paragraphs were material to the judge's adverse conclusion reached in para 35.
32. In the light of that, I am satisfied that the judge materially erred in law in reaching his adverse findings in paras 33-35 of his determination. For that reason, the decision cannot stand. I set aside the decision which must be remade.
33. In relation to Mr Dieu's second ground of appeal, namely that the judge erred in law in his application of the risk category identified in para 3 of the head note in BM and Others to the facts, if the judge's factual findings as to the appellant's political activities had stood, I see no obvious basis upon which he could be criticised for finding that the appellant was, in effect, a "rank and file member" and not as a result at risk on return. The difficulty is that the crucial finding in para 35 which supports that approach cannot stand. As a result, any re-hearing of the appellant's appeal must necessarily, having made appropriate factual findings, consider the application of the risk categories in BM and Others "afresh".
Decision
34. For the above reasons, the decision of the First-tier Tribunal to dismiss the appellant's appeal on asylum and humanitarian protection grounds and under Arts 2 and 3 of the ECHR involved the making of an error of law. That decision is set aside.
35. No challenge has been brought against the judge's decision to dismiss the appeal under Art 8 and that decision stands.
36. Given the nature and extent of the fact-finding required to remake the decision, taking into account para 7.2 of the Senior President's Practice Statement, this is an appropriate case to be remitted to the First-tier Tribunal for a re-hearing.
37. The errors of law do not affect the Judge's finding in para 32, which shall stand, that the appellant has been a member of Toges-Noires since 2000. That apart, none of the Judge's adverse findings shall stand. The re-hearing is to be before a judge other than Judge Lloyd or Judge Waygood.

Signed

A Grubb
Judge of the Upper Tribunal
Date 15th June 2016