Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: AA/07597/2014

THE IMMIGRATION ACTS

Heard at Birmingham
Determination & Reason Promulgated
On January 12, 2016
On January 14, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MA
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant Ms Mair, Counsel, instructed by Duncan Lewis & Co Solicitors
Respondent Ms Johnstone (Home Office Presenting Officer)

DECISION AND REASONS
1. The appellant, citizen of Cameroon originally entered the United Kingdom as a student and on April 28, 2014 he applied for asylum. The respondent refused his application on September 15, 2014 under paragraph 336 HC 395. The appellant appealed this decision on October 1, 2014 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002.
2. The appeal came before Judge of the First-tier Tribunal McDade on November 20, 2014 and all of the appellant's applications were dismissed in a decision promulgated on December 4, 2014.
3. The appellant sought permission to appeal that decision on December 18, 2014. Permission to appeal was granted by Judge of the First-tier Tribunal Denson on January 7, 2015 on the basis it was arguable there was material error in law based on contradictory findings in paragraphs [2] and [6] and a failure to have regard to parts of the evidence submitted on the appellant's behalf.
4. The matter came before me on the above date and on that date I heard submissions from both Ms Mair and Ms Johnstone.
5. The First-tier Tribunal did not make an anonymity direction and pursuant to Rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008 I make no order now.
ERROR IN LAW
6. Ms Mair adopted her skeleton argument and submitted that there were a number of material errors in the decision. Although the respondent would argue that the error in paragraph [2] was a mere typographical error she submitted that it was fundamental to the decision and showed a significant discrepancy in the Judge's findings on credibility. This error was compounded by the Judge's failure to have regard to the bundle of evidence consisting of text messages and other printouts. The judge had commented on the evidence from Cameroon but bearing in mind the evidence submitted it had been incumbent in the Judge to give reasons for rejecting the UK based evidence and simply rejecting the claim based on adverse findings on the Cameroon evidence was insufficient. The Judge failed to give proper findings or cogent reasons for rejecting the claim.
7. Ms Johnstone relied on the Rule 24 response dated January 26, 2015. She submitted the Judge had properly considered all of the evidence and rejected the evidence from the United Kingdom because there were no witnesses or statements to support his account and taking into account the adverse findings about his time in Cameroon the Judge was entitled to reject his claim and was not obligated to make findings on every piece of evidence. Whilst there were documents contained in both the respondent's bundle and appellant's bundle there was no evidence to show where this evidence came from. The letter at page 61 was based on what the administration officer had been told and her evidence could not be tested. The organisations referred to in the letter did not send any representatives to show his involvement with them. The Judge was entitled to consider the evidence in the round and reject the evidence.
8. Ms Mair submitted his activities were akin to sur plas activities and the fact his earlier account was rejected did not mean his current evidence should be rejected without proper consideration.

DISCUSSION AND FINDINGS
9. The appellant had come to the United Kingdom and according to the evidence had studied here for a period of time before applying for asylum in 2014. His application stemmed from a conversation he had had with his brother and a letter he received from his father.
10. The Judge considered the available evidence that emanated from Cameroon and in a detailed decision set out between paragraphs [3] and [6] considered the evidence and made a number of findings. At paragraph [7] of her decision the Judge briefly referred to his activities in the United Kingdom. It is the Judge's approach to this evidence that Ms Mair submits is deficient.
11. I am satisfied that there is a failure by the Judge to consider the evidence submitted in this appeal by the appellant and contained between pages 17-51, in particular, of the appellant's bundle. There were also other messages submitted to the respondent at an earlier stage.
12. The Judge made findings that were open to her with regard to the appellant's activities in Cameroon. Ms Mair did not seek to challenge those findings and those findings remain the starting point of the Judge's assessment. However, I am satisfied it was incumbent on the Judge to consider the evidence submitted primarily in the appellant's bundle and by failing to do so, despite Ms Johnstone's submissions to the contrary, I find there is an error in law.
13. I do not find the typographical error in paragraph [2] amounts to an error in law as it is clear from the overall determination that the appellant's account was rejected.
14. Having found there is an error I have considered whether it would be appropriate to proceed without further evidence being called. Although the previous hearing was on November 20, 2014 there was no application made to adduce further evidence even though the directions issued provided for that.
15. I therefore intend to remake this decision without hearing any further evidence and basing my decision on the evidence that was before the First-tier tribunal.
16. My starting point is to adopt the findings made by Judge of the First-tier Tribunal McDade in relation to all matters that occurred in Cameroon. In particular, I adopt the following findings:
a. The appellant produced no reliable documentary evidence or called any witnesses to support the assertions he made about events in Cameroon. The circumstances of his claimed receipt of documents together with the circumstances in relation to the absence of any witnesses weakened his case.
b. It was not reasonably likely that E would have given the appellant's details to the police as this would have implicated E.
c. The documents contained at paragraphs 52-54 were not given to R as the appellant claimed and the use of these letters were an attempt by the appellant to construct a fabricated account to both the Home office and the Tribunal in order to support an asylum claim.
d. The failure of R to attend the hearing and give evidence further undermined the credibility of his claim.
e. The letter at page 54 was self-serving and was not signed by him. The circumstances in which it came to arrive in the appellant's hands are curious and no weight would be attached to this document.
f. No documentary evidence to support his mother's illness or his uncle's death was adduced and no weight is attached to these claims.
17. The appellant's claim is that he is bi-sexual and his actions here mean that if he were returned to Cameroon and wished to continue his sexual behaviour then he would be at risk due to Cameroon's intolerance.
18. This is ultimately a credibility assessment as to whether the appellant is gay and if he is whether he would be prevented from doing so if he were returned to Cameroon.
19. The existence of text messages does not mean that the content of the messages are truthful. The messages included in the respondent's bundle are an assortment of conversations. The messages are said to come from a dating website but no further information was adduced about this. It is unclear when these messages originate from as the "year" is not included in the messages. However as they were submitted by him before the refusal letter was issued It is safe to assume that they pre-date September 2014. None of these messages refer to any actual meetings having taken place between the appellant and the other persons in the conversation. The appellant's intention in these messages has to be considered in the round and against the background of the earlier adverse findings set out in paragraph [16] above.
20. I turn now to the appellant's bundle of documents and in particular the content of messages between pages 17 and 51. The year of the messages is not identified as before but these messages appear in a similar form to the ones contained in the respondent's bundle.
21. There is a conversation between the appellant and a person called "J" and there is a reference to a possible meeting on August 30. The conversation is then silent until September 20 albeit there is a reference to a liaison between them at some stage between these two dates.
22. There is also a conversation between the appellant and a person referred to as "s" and these chats cover a two week period at the end of May and beginning of June albeit the year is unknown. Although a meeting was suggested nothing came of the meeting.
23. Further evidence of him chatting to other males appears between pages 43 and 48 but apart from demonstrating a string of texts between them they do not show anything more.
24. The final document put forward is a letter at page 61 of the appellant's bundle. This letter is dated October 22, 2014 and refers to the appellant going to Birmingham LGBT offices in Birmingham on October 14, 2015 and talking to Maria Hughes. He did not disclose to her anything about his activities in the United Kingdom and the only reference to his sexuality appears to be what happened to him in Cameroon. She did not appear to have any in depth conversation and the fact she found his account credible has to be assessed against the background that she has not seen the refusal letter or any other documents. The fact she referred him to an asylum seekers social group or a "Brum bi group" does not add any weight especially as she did not attend the hearing and explain her conclusions.
25. I accept the appellant has engaged in text messages but they do not prove he is gay or would be at risk. They refer to one attempted meeting in May/June and to a possible meeting in August/September but little else. This appellant had been here for a number of years prior to visiting the Birmingham LGBT offices but he produced nothing that supported his claim or difficulties be they here or in Cameroon.
26. He came to the United Kingdom and he has produced little evidence that he is gay apart from the above text messages. In light of the earlier findings and his motives I do not accept on the evidence that he is gay or would, if returned to Cameroon, be at any risk. I am satisfied he did not place himself at risk in Cameroon when he was there and I am not satisfied he had any gay relationships in Cameroon. As for his activities in the United Kingdom I am not satisfied he has produced any persuasive evidence that would suggest he is now gay and would want to live openly as a gay man in Cameroon.
27. Having considered all of the evidence I reject his claims for asylum or humanitarian protection and I find he is not need of protection under Article 2 or 3 ECHR. The Article 8 decision had not been challenged and that earlier decision stands.
DECISION
28. There was a material error and I set aside the original decision save in so far as Article 8 ECHR was concerned.
29. I dismiss the appellant's claims for asylum or humanitarian protection and I find he is not [in] need of protection under Article 2 or 3 ECHR.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

FEE AWARD
I make no fee award as I have dismissed the appeal.

Signed: Dated:

Deputy Upper Tribunal Judge Alis