Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02835/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 February 2016
On 7 April 2016
Prepared 17 February 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

hg
(ANONYMITY DIRECTION made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Bartram, instructed by The Migrant Law Partnership Ltd
For the Respondent: Ms S Sreeraman, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of Turkey, date of birth 1 January 1993, appealed against the Respondent's decision, dated 2 February 2015, to make removal directions under Section 10 of the Immigration and Asylum Act 1999, a form IS151A having been served on 3 March 2014 and an asylum/human rights based claim having been refused.
2. The Reasons for Refusal Letter contained within the Respondent's bundle at Annex C relates to HG, dated 19 April 2011, and contained within the case file is the appeal HG made against that decision to First-tier Tribunal Judge Abebrese, promulgated on 29 May 2015. Also within the bundle from the Respondent was the Reasons for Refusal Letter dated 2 February 2015.

3. The matter in respect of this Appellant came before First-tier Tribunal Judge Zahed (the Judge) who, on 9 November 2015, dismissed the appeal made under the Refugee Convention and made no reference to the European Convention on Human Rights. No challenge is made in respect of that aspect of the judge's decision.

4. In relation to the judge's decision [D] it was essentially said in the grounds seeking permission that the judge has placed undue weight upon findings of fact made in the Appellant's brother's MG's decision by Judge Abebrese and that the Appellant's was supported by three other witnesses. It was said thereafter that nowhere in the determination was there a summary of the evidence they gave or any reasons given why the evidence was rejected save, at the last line of paragraph [D22] of the judge's decision where the judge commented upon the weight to be attached to those witness's evidence. Further, it was said it was an error of law to so lightly dismiss and give little weight to the evidence of the three witnesses. In short the determination was:-

"Completely silent in respect of the evidence of the three witnesses. If the evidence was not material to the findings this is not set out. It is contended that the evidence was material evidence of three witnesses which was of relevance."

5. It is clear that the judge at paragraph [D10] noted the identity of those three witnesses, FD, MA and SS and said that a full record of the proceedings had been taken. I have seen that Record of Proceedings and noted the brief evidence given by those three witnesses. In addition, I have seen the witness statements made, one of which runs to two unnumbered paragraphs from MA, a very short note by FD dated and signed 24 June 2015, and a short statement of SS. I set out their respective evidence. MA said:

"I am a cousin of HG. I would like to confirm that my family is a Kurdish family and a political family. Most of our village are Kurdish and involved in some way in the Kurdish struggle. I am aware that my cousin lost her mother and her father disappeared and she went to live with her grandmother. I remember this because it was a great tragedy because her mother was pregnant when she died.

I keep in touch with relatives who remain in our village. The Kurdish people in our village defend themselves and are politically active. Our grandfathers and grandmothers were persecuted as were our fathers and mothers, that is why the new generation struggles for the recognition of our rights. We have constant problems with the local gendarme station and from traitors. HG's father was well-known for his political affiliations and respected in our community. I knew this as a child. He is missing now so far as I know."

6. I note in passing that the document, and indeed the evidence, did not disclose what those political affiliations were but I assume them in some form or other to be pro-Kurdish but not for example pro-PKK. If I am wrong in that it makes no material difference to the decision I have to make.

7. The statement of FD said that she was the aunt of the Appellant and continued:

"...My mother is HG's grandmother. I speak to her about once a month. I can confirm that before HG fled my mother informed me that she had been detained. My mother and father were very upset.

I confirm they told me that the authorities have come looking for HG after she fled. This has happened more than once."

8. SS said this:

"I am a cousin of HG. I would like to confirm my family as a Kurdish family and a political family. I am a member of the Halkevi Kurdish community centre in London.

I speak to family in Turkey on the telephone, particularly my grandmother. I was aware that my cousin had difficulties in Turkey though not the detail and that she had to flee Turkey. I was aware she had difficulties with the authorities. My relatives are mainly in Sakcagozu village."

9. In the grounds of appeal, bearing in mind the Appellant was at the hearing represented by Counsel, Ms E Daykin, it was not asserted that there were matters of evidence advanced at the First-tier Tribunal hearing itself which were particularly pertinent or relevant which the judge had failed to recite or make reference to and thus it is not said in the grounds that the judge had failed to take into account material evidence or has taken into account immaterial evidence. As a matter of approach that the judge was entitled to take the view that the scope of the evidence provided by those three witnesses was limited and whilst it was, in this respect, generally supportive of the Appellant, it did not demonstrate matters within the witnesses' knowledge which particularly bore on the issues of the ill-treatment the Appellant claimed to have met in June and October 2013 nor did it particularly explain the Appellant remaining in Turkey before coming to the United Kingdom in January 2014.

10. Be that as it may the judge was entitled to take into account, bearing in mind the proximity of the Appellant's relationship between MG, his evidence and claim to be at risk of persecution was set out in the decision of Judge Abebrese of 29 May 2015. The judge was entitled to take those matters into account and it was clear that the judge did not regard himself in any 'Devaseelan' sense as bound by those findings. Rather the Judge found that the claim of the Appellant for reasons given by the judge was not buttressed or supported by the case for her brother.

11. In these circumstances [D 21 and 22] set out bases on which he rejected the claim of the Appellant and found her credibility was undermined. I agree with Mr Bartram that the judge's reasons are somewhat light in detail as to why he indicated he attached little weight to family members who had given evidence to the effect, which he had rejected, namely the Appellant's mother had died and her father was missing, without any further independent corroborative evidence.

12. Mr Bartram said where and what might be expected to be produced reasonably bearing in mind it was an asylum case. The case law was substantial now to indicate that the lack of corroboration was not a basis to dismiss a claim. The question arose of course where corroboration could be obtained but was not and that was unexplained: This may be a matter to which a judge was entitled to give material weight in the circumstances of the case.

13. In answer to Mr Bartram's case it may be that there are independent sources such as, as argued by Ms Sreeraman, a death certificate. Similarly, in such cases, frequently there may be evidence from a village head man or the town mayor or whoever may be the official involved to confirm factual matters. Similarly there may be a medical note or evidence recording of the death of a person. I do not seek to set out in any sense what the limits of such independent evidence may be, nor do I ignore the fact that the Secretary of State may well dismiss it all as being self-serving, but that is not to say such evidence could not be obtained. Similarly, the political side of a family and the involvement in Kurdish politics may be matter which may attract the attention or support from a political party who again may confirm the extent to which a person was or was not a supporter of a party.

14. In these circumstances, whilst I agree with Mr Bartram the judge's reasons are rather terse. Given the material that was actually before the judge it did not seem to me, were another Tribunal to look at that evidence again, that any different conclusion was likely to be reached. In the circumstances I do not find that there is any material error of law
NOTICE OF DECISION
15. The original Tribunal decision stands. The appeal is dismissed.

16. An anonymity direction was given in the decision of 9 November 2015 and it seemed to me appropriate and necessary bearing in mind the nature of the claimed ill-treatment of the Appellant that the anonymity order should continue.

Signed Date 20 March 2016

Deputy Upper Tribunal Judge Davey

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 20 March 2016

Deputy Upper Tribunal Judge Davey