Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05437/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision Reasons Promulgated
On 31 August 2016
On 13 September 2016

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
MOHAMMED KISHWAR AHMED
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Shah of Taj Solicitors
For the Respondent: Mr G Harrison Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge M Davies promulgated on 18 November 2015 which dismissed the Appellant's appeal against the decision of the Respondent to remove the Appellant from the UK following the decision to refuse the Appellant's claim for asylum
Background
4. The Appellant was born on 31 January 1988 and is a national of Bangladesh.
5. On 13 March 2014 the Appellant applied for asylum on the basis that he would be at risk on return on the basis of his political opinions.
6. On 13 March 2015 the Secretary of State refused the Appellant's application. The refusal letter gave a number of reasons:
(a) It was accepted that the Appellant was an active member of Jatiyatabadi Chhatra Dal (JCD) the student subgroup of the Bangladesh National Party.
(b) It was not accepted that he was accused of Mahmud Shawkots murder due to inconsistencies in the claim.The notarial certificate produced in re4lation to the claimed prosecution was not clearly dated; the FIR names 17 who were accused of the murder but the Appellants name age and address do not appear; the bail document dates are inconsistent with the period claimed in the Asylum Interview; the newspaper article names only 11 arrested rather than 17 and the Appellant highlighted the name S K Dewan aged 22 but this was not an alias he gave to the Respondent nor was he 22 years old at that time.
(c) It was not accepted that the Appellant was accused of Fahim's attempted murder.
(d) In relation to the Appellants claim that he participated in a local council election the article submitted from Daily Sylhet dated 10 June 2013 does not mention his name although it does refer to his alias but the age given is inconsistent with his age.
(e) The account of him running for election is inconsistent with his claim that he was charged with murder at that time.
(f) The Appellants claim to have been wanted for murder is inconsistent with background material about limits on freedom of movement for political figures and the fact that he lived in Bangladesh from September 2013 to 21 January 2014 without being arrested and to leave legally although claiming that the murder case was high profile and his political identity well known.
(g) The delay in claiming asylum undermined his credibility.
The Judge's Decision
7. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge M Davies ("the Judge") dismissed the appeal against the Respondent's decision.
8. Grounds of appeal were lodged arguing that:
(a) The Judges findings were inadequately reasoned.
(b) The Judge failed to give adequate weight to the background material.
(c) The findings in relation to the documents were inadequately reasoned.
9. On 15 December 2015 First tier Tribunal Judge Hodgkinson gave permission to appeal.
10. A Rule 24 Response dated 24 December 2015 was filed opposing the appeal and arguing:
(a) The Judges findings were adequately reasoned relying on Budhathoki (reasons for decisions) [2014] UKUT 341(IAC)
(b) The grounds amount to a disagreement with a decision that was well reasoned.
11. At the hearing I heard submissions from Mr Shah on behalf of the Appellant that
(a) he relied on the grounds and grant of permission.
(b) The findings at paragraph 56 in relation to the ocuments were inadequately reasoned.
(c) The was plenty of evidence before the Judge to show that the Appellant had used a nickname.
(d) The Judge failed to explore the reason why the Appellant did not claim aylum on arrival.
(e) The Judge has failed to take into account the general background material in relation to arrest warrants.
(f) The Judge has failed to balance the inconsistencies in the Appellants account against the documentary material that showed that he was implicated in the murders.
12. On behalf of the Respondent Mr Harrison submitted that:
(a) He relied on the Rule 24 notice.
(b) There was a clear contradiction in relation to the issue of the Appellant using a nickname in that in the Screening Interview he denied ever using one.
(c) The Judge is not required to refer to every piece of evidence.
(d) The credibility findings were damning in particular in relation to the way that the Appellant gave evidence.
(e) This was a detailed decision made by an experienced Judge. The grounds were no more than an extended disagreement.
The Law
13. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
14. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence that was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration judge concludes that the story told is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration. In Mibanga v SSHD [2005] EWCA Civ 367 Buxton LJ said this in relation to challenging such findings:
"Where, as in this case, complaint is made of the reasoning of an adjudicator in respect of a question of fact (that is to say credibility), particular care is necessary to ensure that the criticism is as to the fundamental approach of the adjudicator, and does not merely reflect a feeling on the part of the appellate tribunal that it might itself have taken a different view of the matter from that that appealed to the adjudicator."
Finding on Material Error
15. Having heard those submissions, I reached the conclusion that the Tribunal made no material errors of law.
16. I am satisfied that when read as a whole the Judge has made detailed findings in relation to the Appellants credibility that arise not only out of inconsistencies between the documentary evidence, the background material and his interviews which are set out in detail in the refusal letter and I can see for myself but also on the basis of the way in which he gave his evidence and responded to cross examination which he describes in detail at paragraph 65: he noted that in spite of clear advice given by him in opening (paragraph 29) the Appellant failed to answer questions and prevaricated in answering questions. I note that Mr Shah did not represent the Appellant before the First tier Tribunal and therefore could not address me on the manner on which the Appellant dealt with questioning but it was open to the Judge who was there to reach an adverse credibility finding in those circumstances. It was also open to the Judge to note that the Appellants failure to answer a number of questions at all was not clarified or addressed in re-examination in that Ms Jabin did not seek to re examine him. This overarching finding that the Appellant was an untruthful witness made by someone who heard that evidence must be given considerable weight and would have inevitably impacted on the Judges overall assessment of the claim.
17. I note what was said in Budhathoki that it was unnecessary and unhelpful for a Judge to rehearse every detail or issue raised in a case and I am satisfied that the Judge set out the Appellants claim in detail at 10-25 and the view taken of it in the refusal letter. He set out in detail at 31-41 the cross examination noting occasions on which he failed to answer the questions put.
18. The Judge accepted the concession made by the Respondent that the Appellant was politically active but beyond that found the Appellants claim was undermined by inconsistencies and set out in detail the inconsistencies that he obviously found most notable: he was not required to address every issue raised. I am satisfied that he was not required to identify every single document produced as he made clear that he had taken into account the evidence in the bundle and a number of documents were specifically identified in the refusal letter and the discrepancies highlighted. The Judge took into account the explanation given by the Appellant to explain the inconsistencies in the documents but was entitled to reject it.
19. It was argued by Mr Shah that there was evidence before the Judge to show that the Appellant used a nickname but I am satisfied that the point made by the Respondent in the refusal letter which the Judge found had merit was that he stated he had never used an alias in the Screening Interview and provided no explanation for this discrepancy.
20. The Judge gave adequate reasons for finding that the Appellants credibility was undermined by his failure to claim asylum on arrival and having noted at paras 34-35 the Appellants evidence as to why he failed to claim on arrival at 58 gave clear reasons why he rejected that explanation at 59 and 62.: he does not have to repeat the explanation given.
21. The Judge gave clear reasons why he rejected the Appellants claim that he was able to escape arrest by relocating to a rural area at paragraphs 59 and 60 and identified a contradiction between his current explanation and what was said in the asylum interview. It was open to the Judge to find it incredible that someone who claimed to have himself a high profile and to be wanted in connection with a high profile murder would have been able to leave the country with no difficulty given the acceptance by his representative that police intelligence would be on computers.
22. I remind myself of what was said in Shizad (sufficiency of reasons: set aside) Afghanistan [2013] UKUT 85 (IAC) about the requirement for sufficient reasons to be given in a decision in headnote (1) : "Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge."
CONCLUSION
23. I therefore found that no errors of law have been established and that the Judge's determination should stand.
DECISION
24. The appeal is dismissed.

Signed Date 12.9.2016
Deputy Upper Tribunal Judge Birrell