Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02150/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunal
Decision promulgated
on 13 March 2017
on 20 March 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

M H
(Anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Sarwar instructed by Bassi Solicitors
For the Respondent: Ms Aboni Senior Home Office Presenting Officer.

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Thomas (‘the Judge’) promulgated on 26th July 2016 in which the Judge dismissed the appellant’s appeal on all grounds. Permission to appeal was initially refused by another judge of the First-tier Tribunal but granted on a renewed application by Upper Tribunal Judge Kamara who found it arguable that the Judge’s findings at [37] in relation to the expert report of Uzma Moeen were inadequate, given that the expert considered there were risks to the appellant as a Shia Muslim (which religious identity was not in dispute) regardless of the truth of the remainder of his claim. Permission to appeal was granted on all grounds.
2. Before the Upper Tribunal Mr Sarwar submitted that the crux of the appellant’s case is that the Judge failed to give reach adequate findings in relation to the expert report.

Error of law

3. At [37] of the decision the Judge writes:

“I have considered the expert report of Uzma Moeen, which provides helpful and detailed information on the religious groups and tensions throughout Pakistan. Her findings in respect of the Appellant’s position, are naturally based on her understanding of him being credible, I have taken account of all her findings.”

4. Mr Sarwar drew the attention of the Upper Tribunal to paragraphs 10 and 11 of the report which are in the following terms:

10. I say at the outset that I have read carefully the Home Office refusal letter in this case and I am aware of the adverse credibility findings. My findings below are made being conscious of those. My expert report should be read subject to any credibility findings by the decision-makers in the present case.

11. Moreover in core respects my assessment stands independent of truth or falsity of [MH’s] claim (which I am fully aware is the domain of the Home Office or the Court to assess) because if he were to return to Pakistan and live his life there as a Shia citizen of Pakistan, he would face the difficulties and risks of harm I set out below. I draw my opinion based on objective evidence and background material which is now well documented.

5. The statement by the Judge that the report was based upon an acceptance of the appellant being credible does not, arguably, reflect the actual content of the report. At paragraph 104 the author of the report also writes:

104. Firstly, as discussed in detail, in the light of huge background material relating to organisational reach and influence of the SSP and/or the Lashkar-e Jhangvi, their alliance with the Taliban, its anti-Shia allied militant organisations in Pakistan along with the objective evidence relating to escalating and every increasing brutal target killings of Shias in Pakistan, in my opinion, it is highly likely that once return to Pakistan a Shia Muslim (irrespective of his profile whether he/his family is one of prominent Shias or just ordinary Shia citizens of Pakistan) would be chased and targeted by these anti-Shia militants due to his faith and ethnicity.

6. It was submitted that the final sentence of this paragraph encapsulates the point made by the expert that the appellant faces a real risk on return solely because of his religious beliefs.
7. It is clear the Judge considered the evidence with the required degree of anxious scrutiny and having recorded the nature of the cases relied upon by both the appellant and respondent sets out her findings of fact at [27-45] of the decision under challenge.
8. The core finding is that the Judge did not find the appellant to be a credible witness. Specific concerns are recorded at [28- 39] of the decision supporting this conclusion which, based on the evidence made available to the Judge, has not been shown to be a finding not reasonably open to her.
9. At [40] the Judge finds:

40. After careful consideration of all the evidence, including the background information indexed in the bundles, and for all reasons given and the concerns I have identified in paragraphs 28 – 39 above, I do not find that the Appellant to be a credible witness. I do not find that the Appellant was threatened by the Taliban, LJ or SSR in Pakistan as claimed. I find that he has fabricated an asylum claim, using the death of his uncle and his brother’s circumstances to remain in the country. Given these findings, I find that the Appellant is not at risk of persecution or serious harm in Pakistan and is not a refugee and does not qualify for humanitarian protection.

10. The Judge also went on to consider the merits of the claim in the alternative at [41] where it is found:

41. In the event that the Appellant was targeted as claimed, (and I do not believe he was) then I have to consider internal relocation. The Appellant’s own problems were confined to Sahawa and Rawalpindi. The population of Pakistan consists of up to 30% Shia Muslim. The Appellant is healthy and educated. His mother continues to live in Pakistan with his friends. I do not believe his claim not to have contact with his mother now. It is neither logical or credible. In any event, his sister has contact with his mother, and the Appellant would therefore be in a position to reunite with her. There is sufficiency of protection in Pakistan and the groups he claims to fear are not State sanctioned. The Appellant has not proved that the Pakistan authorities are unwilling or unable to protect him from the non-state agents he claims to fear. Therefore, it would not be unduly harsh and it is reasonable to expect the Appellant to relocate elsewhere in Pakistan. It follows, that even if the Appellant’s account were true, and I do not find that it is, then internal flight is available and there is no risk of persecution or serious harm to the Appellant on return. For these reasons, he does not meet the requirements for protection under the qualifying directive or for humanitarian protection.

11. I find the Judge has given adequate reasons for the findings made. As such the weight to be given to the evidence was a matter for the Judge. For the Judge to be shown to have materially erred in law it is necessary for Mr Sarwar to establish that there was evidence made available to the First-tier Tribunal to show that followers of the Shia sect of Islam face a real risk of persecution in all of Pakistan. Such material has not been shown to have been provided to that Tribunal and based on the country material the Judge was arguably entitled to reject Uzma Moeen’s opinion that followers of this sect will be at risk where ever they go in Pakistan.
12. The Judge’s conclusion that the appellant is not a credible witness was reasonably open to her on the facts. On this basis, the claim to have suffered acts of ill-treatment or persecution were not made out and nor was the claim to face a real risk of persecution on return. The alternative, had the appellant been credible in relation to past events, this shows no arguable legal error based upon the availability of a sufficiency of protection and internal flight, leading to a finding that the appellant was not entitled to be recognised as a refugee or a person entitled to a grant of international protection on the facts.
13. It is also the case there is no country guidance decision to which the Tribunal has been referred supporting the contention that followers of the Shia sect are at risk of persecution and therefore entitled to a grant of international protection in Pakistan for this reason alone.
14. Mr Sarwar’s submissions refer to two further issues the first relating to an HJ (Iran) point but it was not made out that the appellant will be unable to practice his faith openly on return to Pakistan or that there is any issue based upon the material available and submissions made to the Judge to support a claim that the appellant will be unable to express a fundamentally held belief or part of his identity in Pakistan because of a fear of persecution. The second point relating to a claim that the Judge failed to reach any conclusions on the appellant’s risk following the murder of Intakhab Sarwar has no arguable merit. The named individual is the appellant’s uncle and the Judge makes specific reference to this element of the appellant’s claim at [34] in which the Judge makes findings in relation to this issue.
15. No error of law material to the decision to dismiss the appeal has been made out. The decision shall stand.

Decision

16. There is no material error of law in the First-tier Tribunal Judge’s decision. The determination shall stand.

Anonymity.

17. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 13 March 2017