Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05389/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 10th August 2016
On 12th August 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

Mr Hashwin Singh Gaba
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss G Patel (instructed by Broudie Jackson & Canter)
For the Respondent: Mr G Harrison (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal by the Appellant, with permission, in relation to a Decision and Reasons of the First-tier Tribunal (Judge Holt) promulgated on 4th March 2015. In that Decision and Reasons Judge Holt dismissed the Appellant's Asylum Appeal.

2. The Appellant's asylum claim was straightforward. He claimed to be a Sikh from Afghanistan who would face a risk of persecution by reason of his religion if returned. His wife and children are his dependants.

3. The Secretary of State doubted his nationality and that formed the main plank of the appeal hearing. The Judge found that he was a national of Pakistan rather than Afghanistan.

4. The grounds upon which permission to appeal was granted and expanded upon by Miss Patel before me, are as follows.

5. It is asserted that the Judge adopted a flawed approach to assessing nationality based primarily on the Appellant's language. At the Appellant's screening interview it was recorded that the Appellant spoke Punjabi with a "Mutni" dialect. The dialect was later clarified as being "Multani".

6. The Judge found in the Decision and Reasons that the dialect "Multani" is used in and around the City of Multan in Pakistan. It is argued that there was no evidence before the Judge to suggest that that language came from the City of Multan and alternatively no evidence to suggest it was only spoken there. Miss Patel argued that there is a considerable movement of people around that area and it was entirely plausible for someone in Afghanistan to speak with that dialect. She did not argue that the Multani dialect did not originate in Multan.

7. It is also submitted that the Judge appeared to use the fact that the Appellant used a Punjabi interpreter at the hearing as a matter to doubt his nationality and submitted that it is now trite law that it is inappropriate to use an interpreter as evidence. It is submitted that Punjabi is a language spoken in Afghanistan and prevalent amongst the Sikh community. The fact that the Appellant spoke Punjabi ought not to have been given the weight it was in relation to nationality.

8. It is also asserted that the Judge was wrong to find against the Appellant on the basis that he did not speak Dari or Pushtu when in fact he claimed at interview that he did and in his statement he claimed that he did.

9. It is also asserted that the Judge erred in finding the Appellant's credibility damaged because he had stated at Screening Interview that he had no family in the UK and yet family witnesses attended court. It was the Appellant's case that at the Screening Interview he did not know that he had family in the UK and only discovered their presence afterwards.

10. It is asserted that the Judge erred in failing to give reasons as to why she found that the witnesses had prevaricated and she was under a duty to do so. It is also said that she erred in finding that a late change in the identity of witnesses was a deliberate tactic by the Appellant to ambush the Respondent. It is argued that the original witnesses were present at an earlier hearing which was adjourned at the Court's behest but were unavailable for this hearing. It is also further pointed out that the Representative for the Secretary of State made no application for an adjournment in relation to their evidence.

11. It is also argued that the Judge failed to attach any weight to the evidence of the witnesses and the Appellant himself that he did indeed speak Pushtu and Dari.

12. It is claimed that the Judge has erred in her finding additionally that the fact that the Appellant's wife and children spoke only Punjabi was further evidence that they were not from Afghanistan when the background evidence makes clear that as a result of the persecution of Sikhs in Afghanistan women and children remain at home. As such they would therefore not have been exposed to other languages.

13. The Judge is also criticised for an adverse finding on the basis that the Appellant produced a letter from the Sikh Temple in London rather than Manchester where he lives when the Sikh Temple in London is in fact the one specifically for Afghans; such is clear from the letterhead.

14. On behalf of the Secretary of State Mr Harrison argued, in line with the Rule 24 response, that the Judge had dealt with the evidence in detail. She built her argument for dismissing the appeal and it cannot be said that she did not take proper account of the evidence before her; she considered it with care. The grounds in reality are no more than a disagreement with the Judge's conclusions which were properly open to her on the evidence adduced.

15. I am not persuaded by Miss Patel's argument that the Judge made any material errors of law in her Decision and Reasons.

16. The Appellant claimed in his statement, made some time after his interviews (paragraph 27 of the statement), that he told the Home Office he spoke Dari and Pushtu and asked at his Screening Interview for a Dari interpreter as this is an Afghan language. He says he was told that a Punjabi interpreter had been booked.

17. The Judge dealt with this and finding no evidence that such was ever the case disbelieved that he had in fact ever asked for a Dari interpreter particularly as at the Screening Interview he failed to mention that he could speak Pushtu or Dari. Furthermore, it is remarkable indeed that an Appellant who claims to speak Dari and who claims to have requested a Dari interpreter for his Interview then chose to request a Punjabi interpreter for the hearing. The Judge found he could not speak Dari or Pushtu but rather spoke a dialect of Punjabi that originated from Multan in Pakistan. I can find no error in that reasoning. Whilst it is of course the case that dialects can be found outside their area of origin, it is usually because it is spoken by somebody from that area of origin. It is synonymous with a person speaking with a Scouse accent in London. They could only learn that accent from being brought up in a household with such an accent and that arises only if you are resident in the Liverpool area. Localised dialects originate in the particular locality. Persons speaking with that dialect may move elsewhere but it is learned in the area of the locality. Thus it is entirely reasonable for the Judge to conclude, given the Appellant spoke the Multani dialect of Punjabi that in fact he came from Pakistan and not Afghanistan.

18. The burden of proof rests with the Appellant, he was aware from the outset that his nationality was an issue as was his choice of language. He nevertheless chose to adduce no evidence to the First - tier Tribunal that he spoke Dari or Pushto save for bare assertions. The Judge was entitled to find that inadequate.

19. Whilst if the Judge found against the Appellant in isolation on the basis that the wife and children spoke only Punjabi there may have been some force in the argument that Sikh women and children tended to stay at home in Afghanistan; however in light of the findings in relation to the main Appellant she was entitled to reach a similar conclusion in relation to his wife and children. The fact that they spoke Punjabi with a Multani dialect indicated equally that they also originate from Pakistan. Again it was open to the Appellant to adduce evidence that he spoke an Afghan language and he chose not to do so.

20. Miss Patel criticised the Judge for concluding that the Appellant had stated at his Asylum Interview that his parents were in Pakistan when she argued that was not what he said. How the Judge interpreted the answer to the question was a matter for her. It could have been interpreted in the way that the Judge did.

21. The Judge was also criticised for finding against the Appellant on the basis of a lack of detailed knowledge about Afghanistan when he had answered a considerable number of questions about that country. The Judge found it not credible that an Afghan Sikh would not be aware that an Afghan Sikh woman had been elected a Member of Parliament in Afghanistan as it was such an important matter. She was entitled to that view.

22. Simply because the Appellant offered explanations for matters did not mean that the Judge had to accept them.

23. With regard to the witnesses' evidence, the Judge gave reasons for attaching little weight to their testimony; namely that they prevaricated. Miss Patel's argument was essentially that the Judge should have given reasons for her reasons. That is not required. The Judge did give reasons for rejecting the oral evidence.

24. It is clear that the Judge attached considerable weight to the language issue. However, that is not an error of law. It was clearly an issue that she found, as she was entitled to, to be determinative of the appeal. She did not err in using an interpreter as evidence; rather she noted that the particular language was one spoken and originating in Pakistan, not Afghanistan and there was no evidence that the Appellant spoke any of the languages of Afghanistan.

25. I agree with Mr Harrison that the grounds amount to a disagreement with the Judge's conclusions, which were adequately reasoned. The Judge made no material errors of law in the Decision and Reasons and the appeal to the Upper Tribunal is dismissed.

26. There was no application for an anonymity direction and I see no justification for making one.

The Appellant's appeal to the Upper Tribunal is dismissed.

Signed Date 10th August 2016

Upper Tribunal Judge Martin