Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/05458/2015
AA/05583/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 24th June 2016
On 18th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) M P K
(2) J M
(ANONYMITY DIRECTION MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr J Howard (Solicitor)
For the Respondent: Ms H Abonie (HOPO)

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Parkes, promulgated on 9th October 2015, following a hearing at Birmingham Sheldon Court on 9th September 2015. In the determination, the judge dismissed the appeals of both Appellants, whereupon they both applied for, and were granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellants
2. The Appellants are husband and wife. The first Appellant, the wife, is a Tutsi, and the second Appellant, her husband, is a Hutu, and both are nationals of Burundi. They appealed against the decision of the Secretary of State to refuse them asylum dated 12th March 2015. The first Appellant's claim is that, as a Tutsi married in 2008 in South Africa to a man who is a Hutu, there are dangers that she would face if returned to Burundi. Her father was killed and she was detained and raped and beaten. The second Appellant's claim is that as a Hutu, he would be regarded as a rebel supporter, particularly as his brother had been shot on return to Burundi, which is why he was granted asylum in South Africa. Both Appellants claim that they were subjected to xenophobic attacks in South Africa such that it was not possible for them to relocate within that country (see paragraphs 12 and 14).
The Judge's Findings
3. The judge observed that there was evidence that there was frequent intermarriage between Hutus and Tutsis and that it was estimated that up to 70% of Burundians are of mixed ethnicity (see paragraph 22). The judge held that given the prevalence of mixed marriages and the decline of interethnic violence, he did not believe that the Appellants were persecuted as claimed in South Africa by their fellow Burundian refugees (paragraph 25). As for the second Appellant, the judge was not satisfied that the claim that his brother was killed, would place him at risk because he was inconsistent in the evidence he gave. The judge held that the accounts given by both Appellants "were contradictory and unclear" (paragraph 27). Further, the judge held that there was no evidence that the second Appellant would be identified as being of interest in Burundi (paragraph 29). Indeed, the Appellants did not attempt relocation in South Africa, which is a large country, which they would have done had they been at risk (see paragraph 31). Consideration was given to the fact that the Appellants' eldest son has an allergy problem but there was no up-to-date medical evidence relating to this (paragraph 33).
4. The appeals were dismissed.
Grounds of Application
5. The grounds of application state that the judge erred in making the credibility findings that were made and failed to take into account arguments made in submissions on risk on return due to the family's recognition as refugees.
6. On 25th November 2015, the Tribunal held that, "there is real substance in most of the complaints in the fairly rambling grounds on which the Appellants seek permission to appeal" but that it was possible that the judge may have erred in not sufficiently factoring in the statement from the Appellant's mother (who has refugee status) with respect to how the second Appellant's brother was killed.
7. On 15th December 2015, a Rule 24 response was entered to the effect that the judge made adequate findings of fact in relation to the credibility of the Appellants from paragraph 16 onwards. At paragraph 29 the judge assessed risk on return to the Appellants and concluded that there would not be any risk.
Submissions
8. At the hearing before me on 24th June 2016, Mr Howard, appearing on behalf of the Appellants, submitted that he would rely upon the Grounds of Appeal. He said that it was significant that both Appellants had been granted refugee status in South Africa. He would, however, now make two points.
9. First, the judge misdirected himself with regard to the mode of escape of the Appellant after his brother was killed (see paragraphs 26 and 27) because the judge assessed the "plausibility" of the claim and rejected the Appellant's claim on the basis that it was unlikely that the facts of his claim would have taken place given the risks that were involved if he was also a wanted person. However, the case of HK [2006] EWCA Civ 1037 saw the Court of Appeal confirm that to apply a yardstick of "inherent probability" can be dangerous and even wholly inappropriate in asylum cases, even though it may be helpful in many domestic cases. If there were inconsistencies in what the Appellant was perceived to have said, these inconsistencies were not substantial enough to render the Appellant's account to be incredible. Furthermore, the bundle of evidence submitted showed that the Appellants would not be safe if they were to be deported anywhere in Burundi. The second Appellant had a tenuous connection with Burundi and none of the children had been there. The judge also was wrong to say (at paragraphs 29 to 31) that the claim put forward was incredible by the Appellant as reasons should have been given. Therefore, the entire assessment of "plausibility" was flawed.
10. Second, the judge failed to take into account the fact that the family members had been granted refugee status. The mother and sisters and other family members had been granted asylum status. This meant that risk on return as a failed asylum seeker would be significant to the Appellants. This was a "Robinson obvious" point and ought to have been considered by the judge but was not factored in.
11. For her part, Ms Abonie submitted that she would rely upon the Rule 24 response and simply state that what this amounted to was simply a disagreement with the judge's determination. Adequate reasons had been given.
12. Although the Appellant's mother's letter is not mentioned by the judge it was not material because the judge had stated at paragraph 29 of the determination that, "if I am wrong and his account is to be believed I have considered what he said about events in 2000 in the light of the situation now", and that, "there is no evidence that he would be identified as being of interest in Burundi now either by the security services or any relatives that he may have. There is no evidence to show that ..." (paragraph 29).
13. In reply, Mr Howard submitted that the judge had not made a proper assessment of paragraph 29 of the key features that arose in this case.
No Error of Law
14. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and re-make the decision. This is a case where the judge has looked at each of the two Appellant's claim on their own individual merits. Having done so, the judge has rejected those claims.
15. As for the first Appellant, there was frequent intermarriage between Hutus and Tutsis and the judge was clear that, "the fact of their being in a mixed marriage is not to be regarded as a source of danger" (paragraph 29).
16. As for the second Appellant, the judge held that the account given by the Appellant, which is properly set out in detail at paragraph 26, was one that was "contradictory and unclear" (paragraph 27).
17. But most importantly, the judge then went on to say that even if he was wrong in this, he had considered the position now, and "there is no evidence that he will be identified as being of interest in Burundi now either by the security forces or any relatives that he may have" (paragraph 29). These are all conclusions that the judge was entitled to come to and there is no error of law.
Notice of Decision
18. There is no material error of law in the original judge's determination. The determination shall stand.
19. An anonymity direction is made.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their families. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Juss 21st September 2016