Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: AA/05314/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decisions & Reasons
On August 25, 2016
On August 30, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR HOSHANG JAHANGIR ANBARDAN
(NO ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant Mr Nicholson, Counsel, instructed by Broudie, Jackson and Canter
Respondent Mr McVeety (Home Office Presenting Officer)

DECISION AND REASONS
1. The appellant, citizen of Iran, applied on April 29, 2014 for asylum. The respondent refused this application on June 28, 2014 and removal directions were served on July 16, 2014. The appellant appealed on July 29, 2014 under section 82(1) of the Nationality, Immigration and Asylum Act 2002.
2. The appeal came before Judge of the First-tier Tribunal Lowe (hereinafter referred to as "the Judge") on November 20, 2015 and he dismissed the appellant's appeal in a decision promulgated on December 16, 2014. The appellant sought permission to appeal that decision on January 2, 2015 on the ground the Judge had erred by making incorrect findings on the evidence and making findings without any evidence to support the findings. Permission to appeal was refused by Judge of the First-tier Tribunal Grant-Hutchinson on January 14, 2015 but following a renewed permission to appeal to the Upper Tribunal permission was granted by Upper Tribunal Judge Allen on May 5, 2015 on the ground that it was arguable a person who exited Iran illegally as a failed asylum seeker would be at risk. He found the original grounds raised to be of less weight but granted permission on all grounds.
3. The matter came before Upper Tribunal Judge King TD on May 9, 2016 and he adjourned the appeal pending the outcome of a country guidance case. The case was listed before me on the above date and on that date the parties were represented as set out above.
4. It was agreed that the Tribunal decision of SSH and HR (Illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) applied and that in order to succeed the appellant would have to show an error in the Judge's approach to the factual issues in the case as being a failed asylum seeker and a person who left illegally was insufficient to place the appellant at risk of persecution.
5. The First-tier Tribunal did not make an anonymity direction and pursuant to Rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008 I make no order now.
SUBMISSIONS
6. Mr Nicholson adopted the grounds of appeal and submitted there were three strands to his submissions. Firstly, he submitted the Judge's approach from paragraph [20] onwards were bizarre. Secondly, he referred me to paragraphs [20] and [21] and submitted the Judge erred by putting his own view without any supporting evidence to support his finding. Thirdly, he submitted the Judge's finding the appellant would not have taken the risk of downloading a book failed to take into account that people often took risks regardless of the consequences. The appellant's actions were both credible/plausible and if accepted would have placed the appellant at risk and consequently he would still be at risk following the recent country guidance case.
7. Mr McVeety accepted some of the Judge's comments were written strangely but submitted that reading the decision as a whole it was clear that the appellant's account had not been accepted and numerous findings had been made against him and adequate reasons for those findings had been given. As the findings were open to the Judge on the evidence there was no error in law because merely being a failed asylum and/or having left illegally did not give rise to a refugee claim.
8. Mr Nicholson reminded me that it was a low threshold and as Mr McVeety conceded parts of the decision were strange there must be an error in law.
9. Having heard these submissions, I reserved my decision.
DISCUSSION AND FINDING ON ERROR IN LAW
10. In considering the appellant's claim the Judge had the benefit of both oral and written evidence from the appellant. No issue was taken with the Judge's recital of the appellant's claim in paragraphs [7] to [9] and [13] to [14] of his decision and at paragraphs [10] and [12] he summarised the respondent's refusal letter and evidence. At paragraph [15] he summarised the additional oral evidence that arose at the hearing before summarising the representatives' submissions at paragraphs [16 and [17].
11. The Judge reminded himself that possession of banned articles could lead to a sentence of between six months and two years and if convicted of apostasy the sentence could be execution.
12. Having considered his account, he rejected his claim because he found a number of inconsistencies.
13. Mr Nicholson's submission is that the Judge's approach to that evidence in paragraphs [20] and [21] amounts to an error in law. Mr McVeety argues that whilst there may be errors in his approach in those paragraphs the Judge made significant adverse findings against the appellant in paragraphs [22] and [23] and there was no challenge made to those findings in the grounds of appeal. He submitted to me that any possible error in approach in paragraphs [20] and [21] was not material.
14. In paragraph [20] the Judge found that the appellant would be aware that his secular outlook was not the normal in Iran and would therefore be aware that there were dangers in being seen as an apostate. This finding is an obvious finding and clearly open to the Judge. Mr Nicholson submits that the failure by the appellant to mention religious concerns is not something that should be held against the appellant because it is not a real inconsistency because the appellant was not inconsistent by failing to mention the heads of his claim when spoken to by the authorities. Whilst Mr Nicholson may have a point I fail to see how this materially affected his claim because the Judge spent the rest of paragraph [20] explaining why he found his evidence on this issue to lack credibility bearing in mind his own brother had fled due to the same problem. Such a finding ultimately was open to him.
15. In paragraph [21] the Judge does make findings that appear to be based on his own opinion but the nature of those findings whilst clearly relevant do not ultimately lead the Judge to reject his claim. His findings on the amount of books downloaded and the circumstances of his downloading are clearly findings he was entitled to make in light of the fact he heard the appellant give his evidence. The Judge found he displayed a limited knowledge of his favourite book and whether that book was one of the most famously cited banned books or not does not alter the Judge's findings on the appellant's own actions.
16. Mr McVeety accepted that there was some speculation in the Judge's findings but significantly there has been no challenge brought to any of the findings in paragraphs [22] and [23]. Those findings reject the appellant's claim of his departure, the search of his business address and brought into question the actions taken or not taken as the case maybe.
17. Taking the decision as a whole and noting the adverse findings I am satisfied that the matters raised by Mr Nicholson were not material to the subsequent findings that led to the rejection of the claim. I accept the Judge makes adverse findings in paragraphs [20] and [21] but major parts of his claim are rejected in paragraphs [22] and [23] and I am satisfied that the adverse credibility findings were open to him. The Judge concluded he had no adverse profile in Iran and following the latest country guidance decision I am satisfied there was no risk of persecution.
DECISION
18. There was no material error and I uphold the original decision.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD
No fee award is made.

Signed Dated

Deputy Upper Tribunal Judge Alis