Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02426/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th August 2016
On 17th August 2016

Before

upper tribunal DEPUTY judge ROBERTS

Between

a m q
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THEHOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Selwood, Counsel
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. As a protection claim, it is appropriate to continue that direction.

DECISION AND REASONS

1. The Appellant a citizen of Pakistan (born 3rd June 1983) appeals with permission to the Upper Tribunal against the decision of a First-tier Tribunal (Judge Traynor) in which it dismissed the Appellant's appeal against the Respondent's refusal to grant him asylum/human rights.
Background
2. In summary the Appellant worked in Pakistan as a well-known poet, journalist and radio presenter. His claim is that he started to experience problems in 2007, having held a function against President Musharraf. He received threats and towards the end of 2007 was attacked twice, on the first occasion being badly beaten and tortured.
3. Reports to the police about the above, were of no avail. In May 2009 he was involved in a road show and received threats from Taliban supporters. His claim is that in May 2009 he was kidnapped by the Taliban, interrogated and released only on an agreement to stop writing.
4. The Appellant applied for student visas to enter the United Kingdom on three occasions. The first two applications were refused but the last one made on 17th July 2008, was successful upon appeal.
5. The Appellant arrived in the United Kingdom on 20th January 2010, but was arrested and detained under immigration powers on 24th February 2012. Following that arrest, he claimed asylum on 26th February 2012.
6. The Respondent refused his application for asylum and the Appellant appealed to the First-tier Tribunal at Taylor House. His appeal was allowed but the decision was subsequently set aside and the matter remitted to the First-tier Tribunal for the appeal to be heard de novo.
7. The second decision which forms the subject of this appeal, was heard by FtT Judge Traynor on 16th March 2016 who in a decision promulgated 14th June 2016 dismissed the Appellant's appeal.
Onward Proceedings
8. The Appellant appealed Judge Traynor's decision on two grounds:
failure to take into account material evidence.
The judge's reasoning contained irrational findings particularly at [67].
9. Permission was granted by the FtT in the following terms.
"1. The Appellant seeks permission to appeal, in time, against a decision of First-tier Tribunal Judge Traynor who, in a decision promulgated on the 14th June 2016, dismissed the appeal against the respondent's decision to refuse asylum and remove the appellant from the United Kingdom.
2. Given the detailed nature of the Tribunal's findings, it is not arguable that the delay in promulgating its decision (which was in any event short of 3 months following the hearing) was such as to affect the recollection of the decision-maker or (of itself) to undermine the confidence of the litigants in the decision. For the same reason, it is not arguable that the Tribunal failed to have regard to material evidence. Permission to appeal on ground 1 is therefore refused.
3. It is however arguable that the reasoning of the Tribunal at paragraph 67 of its decision (essentially, that the appellant's claim to have expressed his political opinion is not worth of belief because a sensible person would not have placed himself a risk by doing so) is contrary to the underlying assumptions of the Refugee Convention and, therefore, irrational. This reasoning, alone or in combination with the other aspects of pleaded irrationality, have arguably led to an unsafe decision. Permission to appeal on ground 2 is accordingly granted."
10. Thus the matter comes before the Upper Tribunal to decide initially whether the decision of the First-tier Tribunal discloses such error that it requires it to be set aside and remade.
Submissions /Error of law
11. I heard submissions from both representatives, who were in agreement that the FtT's decision is fundamentally flawed and must be set aside for error. The critical paragraph is [67]. Mr Tarlow accepted that the judge's findings in [67] are contrary to the underlying assumptions of the Refugee Convention and as described in the grant of permission, leads to an unsafe decision on account of its irrationality.
12. Both representatives were further of the view that if I were in agreement with their submissions, the only right course for this matter is for it to be remitted once more to the First-tier Tribunal for a further fresh hearing de novo. This is because the consideration of the Appellant's claim essentially rests upon his credibility and therefore because of the amount of judicial fact-finding that must be made, it is only fair that the Appellant retain the right to a second stage appeal.
13. I agree with the course of action set out above. I find that the consequence of the findings in [67] is that the FtT's decision amounts to an irrational one, which in turn taints the whole decision. It must be set aside therefore in its entirety for legal error.
14. I find that the matter should be remitted to the First-tier Tribunal (not Judge Traynor or Judge Andonian) for that Tribunal to remake the decision.
15. Mr Selwood requests that any listing before the First-tier Tribunal take into account his availability, as he has been instructed to represent this Appellant throughout the course of the several hearings which have already taken place.

Notice of Decision

The decision of the First-tier Tribunal dated 30th April 2016 is hereby set aside for legal error. The matter is remitted to the First-tier Tribunal (not Judge Traynor or Judge Andonian) for a fresh rehearing.

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 them or any member of their 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 C E Roberts Date 16 August 2016

Upper Tribunal Deputy Judge Roberts