Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number AA/05781/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower Decision and Reasons Promulgated
On 19th September 2016 On 12th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

HUSSIEN AYED MAHADI SHARIF
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr R Sharif (Solicitor, Fountain Solicitors)
For the Respondent: Ms Abone (Home Office Presenting Officer)

DETERMINATION AND REASONS

1. The Appellant's asylum appeal was heard by First-tier Tribunal Judge O'Hagan at Sheldon on the 10th of July 2015 and dismissed in a decision promulgated on the 11th of August 2015. The Appellant sought permission to appeal to the Upper Tribunal in grounds of the 20th of August 2015 which was refused. Permission was granted on a renewed application to the Upper Tribunal, limited to the asylum grounds.

2. The Appellant's case is that he is non-Arab Darfuri from the Berti Tribe. The findings are set out in the decision from paragraph 42 onwards. The Judge rejected the Appellant's claim to be of that background and found that the Appellant would not be at risk in Sudan. The Appellant did not succeed under the Immigration Rules or article 8.

3. The grounds argue that the Judge misdirected himself in law in paragraph 48 in relation to the question he was addressing. It is suggested that the findings at paragraphs 50 and 51 were inconsistent, that paragraphs 53 and 59 contained inadequate reasoning for the findings. With regard to paragraph 55 there was no requirement for corroborative evidence. At paragraph 62 the Judge noted the Appellant's distress but had not taken a holistic approach to assessing credibility and had erred in relation to section 55 and the Appellant's children.

4. The Appellant's skeleton argument was relied on by Mr Sharif in addition to the submissions made. The submissions of Mr Sharif and Ms Abone are set out in the Record of Proceedings and referred to where relevant below. To some extent the grounds rely on selective quotes from the decision which do not give an accurate picture of the approach of the Judge or the findings made.

5. The burden was on the Appellant to show that he would be in danger for the reasons advanced. His case was, as indicated above, that he is from the Berti tribe. That was his case and was the question the Judge had to address. It was not the Appellant's case that he was, generically so to speak, a non-Arab Darfuri and for the Judge to have considered that would have entailed an exercise in speculation which was outside his remit. The Judge correctly identified the Appellant's case and considered it as presented.

6. Superficially the complaints about the differences between paragraphs 50 and 51 look to have merit. However, having read the decision it is clear that the paragraphs are dealing with different aspects of the Appellant's case and different aspects of his knowledge. Paragraph 50 concerned the Appellant's lack of knowledge of the history and culture of the tribe and this was not held against the Appellant.

7. Paragraph 51 concerned what were current events for when the Appellant was in his 20s, an adult, and in the claimed circumstances a time when he might be expected to be take an interest in the issues affecting his claimed tribe at that time. The Judge was entitled to consider that more knowledge of current events would be reasonable to expect given the impact that could have on day to day living. The aspects considered by the Judge were different and not mutually dependent, the different findings were justified by the content and context of the subject matters under consideration.

8. The suggestion that the reasoning in paragraph 53 was inadequate is unjustified. It is a lengthy paragraph in which the Judge analysed the information and the basis of the conclusion of Dr Osman and noted inadequacies in the evidence provided. Fairly he noted that rejecting the findings of the report did not lead to a finding that the Appellant was not a member of the Berti and gave other and further reasons for that finding.

9. Similarly paragraph 59 is a lengthy paragraph which contains detailed consideration of the Appellant's claim to have given money to charity. To simply quote the final sentence of the paragraph without engaging with the preceding analysis is unhelpful and misleading. The analysis conducted was measured and open to the Judge and the complaint has no merit.

10. With regard to paragraph 55 the Judge was not requiring corroboration. It is trite law that a Judge is entitled to have regard to the absence of evidence that might reasonably be expected. The gap identified by the Judge was surprising and it was a matter he was entitled to take into account in assessing the Appellant's evidence. It was not treated as being determinative but was one of a number of factors taken into consideration.

11. The suggestion that the Judge did not take a holistic approach to the consideration of the Appellant's evidence is unsustainable. Demeanour is an aspect but as the Judge observed is a notoriously unreliable guide. Had the Appellant given his evidence completely calmly and dispassionately would that have justified a rejection of the claim? That was only one aspect of the evidence considered by the Judge and he noted in paragraph 62 why caution was required.

12. The decision has to be read as a whole and regrettably the grounds do not engage with the decision fully but have taken aspects of the decision out of context and sought to portray the findings made in a light which is not justified. The grounds do not show that the Judge erred either in the approach taken to the evidence or the findings made and I find that there is no error of law.

CONCLUSIONS

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision.

Anonymity

The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I make no order.

Fee Award

In dismissing the appeal I make no fee award.

Signed:

Deputy Judge of the Upper Tribunal (IAC)

Dated: 11th October 2016