Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07267/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 30th August 2016
On: 29 September 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

NA
(anonymity direction made)
Appellant
and

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr S. Khan, Malik & Malik Solicitors
For the Respondent: Ms J. Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Afghanistan born in 1985.
Anonymity Order
2. This case concerns a claim for international protection. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:
"Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"
The Appeal
3. The Appellant claims to have a well-founded fear of persecution for reasons of his political opinion. He claims to have stood for public office on an anti-Taliban ticket and to have come to their adverse attention as a result. He relied on numerous documents as well as his own evidence.
4. The First-tier Tribunal did not accept that the Appellant had discharged the burden of proof. It found that he had given discrepant evidence about a core part of his claim, namely whether his father had been in a coma for two years following his abduction and torture by Taliban militants. The Appellant's oral evidence that the Taliban had recently renewed their threats was rejected on the basis that if true he would have included it in his witness statement. The documentary evidence submitted, comprising 11 items, was given no weight at all: the Tribunal found the contents of some to be inconsistent with the evidence overall, and the Appellant had failed to supply the originals.
5. The Appellant sought permission to appeal on the grounds that the Tribunal had erred in its approach to two matters. First it was submitted that it was irrational to place no weight on the documents for the reason given. The Appellant had confirmed that his representative had the originals and any failing on her part to forward them to the Tribunal could easily have been remedied had it been raised at hearing. Second, the Appellant had said in his witness statement that his father was in a coma and this had been consistent with his oral evidence.
6. Permission was initially refused on all grounds by First-tier Tribunal Judge Fisher. Upon renewed application permission was granted by Upper Tribunal Judge Freeman in respect of the second ground only. The Tribunal's conclusion that the Appellant had only latterly mentioned his father's coma was arguably unfair given that he had mentioned it in a witness statement a year before the appeal was heard.
7. The Respondent opposed the appeal on all grounds. It is submitted that the determination goes into some detail about the way that the inconsistencies emerged in relation to the father's coma and that the findings were open to the Tribunal on the evidence before it. As for the documents, it was a matter for the Appellant as to how he wished to present his case.
My Findings
8. Permission was expressly refused on ground 1. Given the extensive nature of the documents in question it is perhaps surprising that that decision was not challenged by way of judicial review. At the date of the appeal before me no such challenge had been brought. I am therefore precluded from determining whether the decision to place "no" weight on documents that included readily verifiable material such as the certificate issued by the Independent Election Commission or a letter of thanks from the Halo Trust was rational or fair.
9. The First-tier Tribunal clearly placed significant weight on the matter of the Appellant's father. Its detailed deliberations and findings on this evidence take up a full eleven paragraphs of the determination.
10. Permission was granted on the basis of what is said at paragraph 26:
"I do not find the Appellant's evidence about his father's coma consistent or credible. I find that his failure to mention prior to the hearing that his father had fallen into a coma shortly after his release by the Taliban damages his claim that his father was kidnapped as claimed, or that he suffered any illness as a result of being kidnapped. The appellant failed to mention either at his asylum interview or in either of his two witness statements that his father had fallen into a coma some two years ago"
11. These findings are contrasted in the grounds with the words in the Appellant's witness statement [at para 4], drafted in April 2015, over a year before the appeal was heard:
"My father is now very ill and suffers from hear (sic) problems. My father had an operation on his stomach. For the past four months my father has been in a hospital in a coma".
12. Had it been established that the Tribunal had overlooked this evidence I would have had no hesitation in finding paragraph 26 to contain an error of law, in the form of a material error of fact. The Appellant plainly did mention, long before the hearing, that his father was in a coma. I am not however satisfied that it can be shown that the Tribunal missed that evidence. It is expressly referred to at paragraph 24, and there are further a number of qualifications to the words used at paragraph 26, which read in the context of the determination overall indicate that the Tribunal has in fact given close and anxious scrutiny to this issue.
13. The Tribunal does not say that the Appellant never mentioned the coma. What is said is that he had never previously claimed that his father had been in a coma for the entire period since he was released by the Taliban in March 2014. This is an accurate summary of the evidence.
14. The Appellant's first opportunity to state his case was in his asylum interview, dated the 16th April 2015. He explains how the local Taliban put up posters bearing his photograph with a warning that any Talib commander had authority to kill him. The Appellant fled the area with his wife and children, but within the week they had come and abducted his father, on the 25th March 2014. The Appellant is asked what happened to his father and he said that local elders intervened to negotiate with the Taliban. When they saw that this old man had been very badly beaten they begged for his released. The Taliban acquiesced and released him after 2 days. He goes on to explain that he managed to speak with his father who warned him to take care of himself and said that he had been lucky to escape with his life. There is no mention of any further consequences for his father.
On the 29th April 2015, approximately a week after the claim had been rejected by the Respondent, a witness statement was drafted. That witness statement contains the paragraph cited above, and a reiteration of the evidence given at the asylum interview [paras 50-57]. There is no statement to the effect that the Appellant's father fell into a coma upon, or soon after, his release.
15. A further statement was drafted for the purpose of the appeal. This is dated 14th April 2016 and makes no reference at all what has happened to the Appellant's father, save that he was kidnapped in March 2014.
16. Having looked carefully at all of that material I am satisfied that the findings of the First-tier Tribunal were open to it. It was entitled to find that the Appellant had not previously claimed that his father had been in a coma since his release. The April 2015 witness statement states that he had fallen into a coma four months earlier, ie at the beginning of that year, and strongly suggests that the underlying cause was some kind of illness or problem with his stomach. There were then, the discrepancies identified in the determination.
17. The question then arises whether the Tribunal acted fairly or rationally in drawing the adverse inference that it did from those findings. Two matters weigh in the Appellant's favour. First of all, Mr Khan points out, much of the evidence about the father was hearsay. The Appellant had not been at home, having been in Kabul and then out of Afghanistan. If the evidence about his father's condition was vague or inconsistent that was because the information supplied to him also suffered from those defects. Secondly, the interview dated 16th April 2015 and the witness statement of 29th April 2015 were both undertaken whilst the appeal was in the 'fast track' asylum process subsequently deemed by the Court of Appeal to be "systematically unfair and unjust": Lord Chancellor v Detention Action [2015] EWCA Civ 840. I have considered carefully whether either or both of these factors should have weighed in the First-tier Tribunal's assessment.
18. In respect of the 'fast track' process it is right that the Appellant's asylum claim was processed very quickly. He claimed on the 24th March 2015, was interviewed on the 16th April 2015 and gave a witness statement to his representative whilst in detention on the 29th April 2015. I appreciate Mr Khan's concern that this statement would have been prepared in considerable haste. The refusal came on the 21st April 2015 and an appeal lodged. The appeal was dismissed by First-tier Tribunal Judge Chana on the 19th May 2015, but following the decision of Nichols J in the Detention Action case, her determination was automatically set aside by order of the President of the First-tier Tribunal. The Appellant was then released from detention. The appeal before Judge Chamberlain was not listed until April 2016. There was therefore a period of one year in which the Appellant was able to consult freely with his representatives and to draft coherent witness statements setting out the basis of his case. He had the opportunity to rectify any mistakes or omissions in his asylum interview or original witness statement. He, or rather his representatives, did not take that opportunity. It cannot therefore be said that this decision, as Judge Chana's was, was infected by the "systematic unfairness" identified in the Detention Action case. That too is the difficulty with Mr Khan's 'hearsay submission'. If the Appellant's witness statement, prepared for the appeal, had said "in truth I do not know what has happened to my father or the extent to which his current ill health was caused by detention - I do not know because I am not there and I have not been able to speak with him directly", this may have been a fair point. He did not however do this. He instead gave varying accounts which the Tribunal was entitled to reject for lack of consistency.
19. I conclude that there was no error in the approach taken to the evidence about the Appellant's father. With some reluctance I am bound therefore to dismiss the Appellant's appeal. For my own part I have considerable unease at the decision to attach no weight to the extensive documents that had been produced in support, but as I note above there is nothing that I can do to address that issue. The Appellant may wish to consider why the original documents were not before the First-tier Tribunal and to seek appropriate redress if that failing was not his.
Decisions
20. The determination of the First-tier Tribunal does not contain the error identified in the ground of appeal and the decision is upheld. The appeal is dismissed.
21. There is an order for anonymity.

Upper Tribunal Judge Bruce
22nd September 2016