Tribunal decisions

The decision

IAC-AH-DN-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06674/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 13th January 2017
On 20th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mrs kozhin mahmud rasul qadir-zada
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hussain, Solicitor
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Iraq born on 2nd March 1988. The Appellant arrived in the UK on 20th March 2014 and claimed asylum on the same day. The Appellant's claim for asylum is based upon a fear that if she is returned to Iran she would face mistreatment because her husband is wanted for giving sanctuary to a Sunni Mullah. The Appellant claims that she was born in the Kurdish region of Iraq in Sulimaniyah. The Appellant who is a Sunni Muslim has an Iranian father and an Iraqi mother. The Appellant went with her parents in 1991 to live in Iran. In 2007 she married her husband, Alan Mohammadi. Their son Aru Alan was born in 2008. Full historical details thereinafter are set out at paragraph 3(i) to (v) of the Secretary of State's Notice of Refusal. Notice of Refusal was sent to the Appellant on 25th March 2015.
2. The Appellant appealed and the appeal came before Immigration Judge Simpson sitting at Manchester on 24th February 2016. In a decision and reasons promulgated on 27th May 2016 the Appellant's appeal was dismissed on asylum and human rights grounds and the Appellant was found not to be in need of humanitarian protection.
3. On 9th June 2016 Grounds of Appeal were lodged by the Appellant to the Upper Tribunal. On 21st June 2016 First-tier Tribunal Judge O'Garro granted permission to appeal. Judge O'Garro noted that the Grounds of Appeal were lengthy but in essence contend that the judge misdirected herself in law in her application of the Devaseelan guidelines and that the judge considered objective evidence which was not before the Tribunal. Further it was contended therein that the judge had failed to properly evaluate the evidence of the Appellant and had not engaged with or assessed the medical evidence regarding the Appellant's claim to ill-treatment and injuries at the hands of the authorities and that the judge had failed to make a proper assessment of the Appellant's individual circumstances in deciding that the Appellant can be removed to Iraq.
4. Judge O' Garro found arguable merit in the grounds in the terms that they were set out but in particular considered that although the judge had made clear that she had considered Devaseelan she appeared not to evaluate the evidence and independently decided the Appellant's case. Further Judge O'Garro considered that it was also arguable that the First-tier Tribunal Judge may not have considered the Appellant's circumstances cumulatively in deciding whether her removal would breach her rights under Article 3.
5. On 3rd July 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. The content of that Rule 24 response is set out at paragraphs 2 to 4 therein.
6. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by her instructed solicitor Mr Hussain. The Secretary of State appears by her Home Office Presenting Officer Mr McVeety.
Submissions/Discussion
7. Mr Hussain starts by pointing out that the Appellant claims she is an Iranian national through the patrilineal line and that she has resided in Iran from the age of 2. He notes that she claims that she lived in Iran for almost her entire life and faced persecution at the hands of the authorities when she and her husband allowed a cleric to rent their property. He notes that at paragraph 20 Judge Simpson found as a matter of fact and law that the Appellant was an Iraqi citizen. However he points out that the reference at paragraph 20 to the Iraqi Official Gazette dated 7th March 2006 was not a document before the Tribunal and that that is important because the judge goes on to rely upon it to show that the Appellant is Iraqi. Further he notes that the judge states that Iran does not accept dual nationality. He queried how the judge reaches such a finding.
8. Mr Hussain notes that at paragraphs 21 to 24 the judge had found that Devaseelan applies as the case is based on the same factual nexus as the Appellant's husband whose appeal was dismissed by Immigration Judge Edwards. He submits that the judge materially erred in law by failing to have regard to the judgment in AA (Somalia) v SSHD [2007] EWCA Civ 1040 which states that where there is "compelling" or "significant" new evidence Devaseelan principles may not necessarily apply. He states that the evidence argued was not merely newspaper articles but that specific reference was drawn to the Appellant's medical evidence which confirmed that she had suffered a stroke, weakness down the left side of her body and that she had significant memory loss. He submits that documentation from the Royal Liverpool Hospital was not considered. He submits it is necessary for the judge to engage with new evidence and bearing in mind there has been no consideration of the medical evidence this could, had Judge Simpson considered it properly, that she might have departed from the previous findings found by Immigration Judge Edwards.
9. Finally Mr Hussain turns to the issue of the ability of the Appellant to relocate to Kurdistan. He notes that at paragraph 25 Judge Simpson had stated "There was nothing to prevent her from seeking refuge in Iraqi Kurdistan particularly as she had an aunt there at the relevant time, indeed she left her son with that aunt when she made her way to the UK." He submits that the judge has failed to engage with the Appellant's own evidence at paragraph 14 of her witness statement where she confirms she did not take her child to Iraq but her father did and secondly she acknowledges the Appellant's evidence that her aunt had passed away (see paragraph 9 of the decision) and yet argued that the Appellant could return to Kurdistan. He submits that the Appellant has no family in Iraq and that she is a vulnerable female with no Iraqi passport so therefore the findings of AA (Iraq) CG [2015] apply. Overall he considers the judge has given insufficient reasons and asked me to allow the appeal and to remit the matter back to the First-tier Tribunal for rehearing.
10. Mr McVeety starts by addressing the Appellant's account pointing out that her account does not differ from that that was before Judge Edwards where it was described as absurd and that Miss Patel herself before the First-tier Tribunal had agreed that it was very unlikely. Thereafter he takes me to the medical evidence. He points out that does not show that the Appellant was tortured in fact just the opposite and that the Appellant had a stroke caused through vascular problems. Whilst acknowledging that the Appellant contends, as is referred in the letter from the Wilson Centre NHS Foundation Trust of 20th February 2015 by Dr Menon consultant neurologist, that she had been assaulted Mr McVeety submits that that mere statement confirms nothing.
11. He takes me to paragraph 25 of Judge Simpson's decision. The position in Iraq is he submits only an alternative position and that the core of her account is not credible. He submits that return to Kurdistan is an alternative finding and whilst the judge should not do her own research that is not material on the basis that the core of her account was found not to be credible by the judge. He accepts that nothing was handed in with regard to the Appellant's Iraqi nationality but accepts that even if that were to be the case it is not material to the outcome of this appeal. He asked me to dismiss the appeal.
12. In brief response Mr Hussain points out that the letter from Dr Mirza does not say that the Appellant definitely has a vascular lesion merely that it appears to be. He also asked me to note the letter from Inclusion Matters Liverpool dated 28th August 2014 reflecting the Appellant's depression which again appears to have not been referred to by the judge.
The Law
13. Areas 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 fact or evaluation or to give 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 of argument. Disagreement with an Immigration Judge's factual conclusion, 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 which 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 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.
Findings on Error of Law
15. The judge herein has, I acknowledge, seemingly carried out her own research in drawing the conclusion with regard to the Appellant's nationality. It is accepted practice that that should not take place and as such it constitutes an error of law. The question arises as to whether it is material to the outcome of this decision. I conclude ultimately that for reasons given below it is not. The judge has noted a very considerable amount of documentation that was put before her including the Appellant's witness statement and the decision against the Appellant's husband. These are recited at paragraph 3. She has then gone on to cite the Appellant's account of events as set out both within her statement and screening interview. The judge has gone on to give appropriate weight to the finding in the decision against the Appellant's husband. This is recited at paragraph 21 and the conclusion the judge drew particularly on the issue of credibility is one that the First-tier Tribunal Judge not only was entitled to make but gave reasons as to why she had made it. Thereafter the judge notes the similarity of the factual nexus with that of her husband's claim and the findings of Judge Edwards at paragraphs 23 and 24. The judge makes findings of fact at paragraph 24 that the Appellant fails to demonstrate to the required standard she would be at risk in Iran on the basis of her religion and/or imputed political opinion/ethnicity and this was a finding that the judge was entitled to make.
16. I remind myself that a proper approach to credibility requires an assessment of the evidence in the general claim and that in an asylum claim relevant factors are firstly the internal consistency of the claim, secondly the inherent plausibility of the claim and thirdly the consistency of the claim with external factors of the sought typically found in country guidance. Whilst I acknowledge that a Claimant in theory need do no more than state their claim that claim still needs to be examined for consistency and inherent plausibility. That is exactly what the First-tier Tribunal Judge has done in this case and has made findings of fact which she was entitled to. She has applied the principles of Devaseelan properly and whilst I acknowledge that the medical evidence may be new I agree with the submissions made by Mr McVeety that it is not material to this claim bearing in mind the findings on credibility.
17. So far as the issue of return to Kurdistan is concerned the issue is addressed albeit somewhat sparsely by the judge at paragraph 25. Again the decision has to be looked in context bearing in mind the adverse findings of credibility made.
18. Overall this is a decision where whilst there are errors of law they are not material to the overall finding of the judge. The judge has given sound reasons for applying the Devaseelan principles and sound reasons for her findings on credibility. In such circumstances the decision does not disclose a material error of law and the appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.
Notice of Decision

The decision of the First-tier Tribunal Judge does not disclose a material error of law and the appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made

Signed Date

Deputy Upper Tribunal Judge D N Harris