Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07687/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
On 12 October 2016
On 19 October 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

H F N
(anonymity direction NOT made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr G P McGowan, of Quinn, Martin & Langan, Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant appeals against a decision by First-tier Tribunal Judge Bannerman, promulgated on 11 August 2016, dismissing his appeal against refusal of recognition as a refugee from Iran, as a gay man.
2. The gist of the 1st ground is as follows. The judge focused solely on the appellant not being a practising homosexual in the UK, overlooking his evidence of the process of discovering his sexuality in Iran and his explanations for not disclosing his sexuality in the UK. At paragraph 51 the judge said there was "no evidence at all of any involvement of [the appellant] in any homosexual community or attending any gay clubs etc. in the UK. This finding is predicated upon the judge's personal assumptions that to be gay requires to be constantly practising sexuality, part of a homogenous homosexual community and attend specific venues which is not only a worrying assumption for a judge to make but? entirely irrational? so unreasonable and so beyond any range of reasonable findings available to judge that they must be considered to constitute an error of law".
3. The 2nd ground criticises paragraph 56 of the decision, thus. The judge found that the appellant was unable to provide details of an arrest warrant and did not find his claim that the police attended his house credible "particularly in the complete absence of any evidence other than its own claim that this happened". This placed upon the appellant a standard of proof requiring him to corroborate his own evidence by evidence from a secondary source, and failed to take into account the appellant's evidence and the background evidence regarding the raid on his house, lack of certainty as to whether warrants are handed to family members, and absence of fairness within the Iranian judiciary, particularly in relation to homosexual cases. There was clear evidence to support the appellant's lack of knowledge about the warrant, failure to take account of which amounted to error of law.
4. In a rule 24 response respondent submits as follows. It was open to judge to conclude the appellant's lack of engagement with anyone in the UK on the subject of his sexual orientation for the near two-year period since his arrival was damaging to his credibility when set against his allegedly risk-taking behaviour in Iran. The judge took further adverse credibility points at paragraphs 54 and 55 which were clearly open to him. The appellant was not obliged to provide corroborative evidence, "but given his claim that his father was prepared to assist him to avoid coming to harm it was open to the judge to conclude that corroborative evidence could have been? provided". The determination contained a number of well-reasoned findings and no material errors of law were identified.
5. Under rule 25 the appellant replies on these lines. HJ (Iran) v SSHD [2010] UKSC 31 is relied upon in relation to stereotyping. On further credibility maters, it was not necessarily incredible that someone presenting at Accident and Emergency might be seen immediately; there was no evidence or examination by the respondent on how far the police station was from the hospital, or whether police officers were in the vicinity, or whether the appellant's friend alleged assault; these matters were not within the appellant's knowledge; it was the duty of the judge "to speculate favourably for the appellant rather than simply to treat the evidence as incredible"; the evidence was not beyond the realms of possibility. The judge said that had the appellant been found credible that would have led to an entirely different decision, so the question was whether the judge erred in his reasons for finding the appellant not to be homosexual.
6. The oral submissions by Mr McGowan followed the lines above. He said that the damage was done at paragraph 51, where the judge founded upon 5 issues, all of which were of the nature condemned as stereotyping in HJ at paragraph 78. The judge had been referred to Dutch authority to similar effect, and also for the proposition that the appellant should not be found to lack credibility merely because he did not rely on his declared sexual orientation on the 1st occasion he was given to set out his claim for protection. Ground 2 disclosed that it was quite possible that an arrest warrant might exist for the appellant as he claimed. The judge had engaged in speculation.
7. Mr Mullen submitted that everything the judge set out at paragraph 51 was factually correct. Although those remarks followed upon the statement of the judge's conclusion that the appellant was not credible, they were not to be read as his reasons, or sole reasons, for reaching that conclusion. That was clear from reading the determination as a whole, particularly paragraphs 53 to 58. The appellant did not challenge the specific reasons the judge gave in those paragraphs for not accepting the appellant's evidence. The grounds, on close inspection, were only challenges to the relative weight the judge gave to items of evidence and disagreement with his conclusion, dressed up under the heading of legal error. The judge did not rely on stereotyping, but simply recorded matters of which there was no evidence, quite correctly. The grounds overstated the significance given to that. No error of law was demonstrated.
8. Mr McGowan in response said that the appellant had given reasons why he did not engage in any homosexual activity in the UK. He was concerned that information might make its way back to Iran, and worried about homophobia within the Iranian community in Glasgow. The judge did not deal with these matters in this decision, nor with how the appellant came to realise in Iran that he is gay. His consideration therefore was based on stereotypical assumptions. If the judge did not think that these matters were the reason for his negative decision, they need not have been mentioned. They were not simply in the background.
9. I reserved my decision.
10. The grounds and submissions for the appellant in my view do not fairly represent the FtT's decision, and they overstate the judge's duties in his favour.
11. It is correct that a judge should not found upon stereotypes, but that is not the issue with which Lord Rodger was concerned at paragraph 78 of HJ. He was dealing there with the right to live freely and openly as a gay man, a point which he went on to "illustrate ? with trivial stereotypical examples from British society".
12. The judge did not say or imply that gay men must be "constantly practising sexuality, part of a homogenous homosexual community and attend specific venues". The assumptions alleged by the grounds might amount to error of law, perhaps even to irrationality as alleged, but the grounds read into the decision matters which are simply not there.
13. The judge was dealing with those aspects of the case in the context not only of credibility but also of the submission that the appellant's conduct was such that he would face no persecution in Iran even if homosexual (paragraph 31; an alternative on which the judge makes no ultimate finding, but which he does say would likely have gone in the appellant's favour; paragraphs 52 and 59). The judge's remarks are all a correct reflection of the evidence.
14. There is no duty on a judge to "speculate favourably" for an appellant. Appellants may in some circumstances be entitled to the benefit of doubt, but judges generally are tasked with explaining whether or not appellants have established their case, to the low standard applicable.
15. The decision is to be read fairly and as a whole. The conclusion that the appellant is not credible is explained over several paragraphs, not only paragraph 51. It is optional whether to state the conclusion before or after the reasons.
16. The appellant was found to be an unreliable witness on all essential aspects of his claim, including his alleged homosexuality. The judge did not misconceive there to be any legal requirement of corroboration. He gave several sensible reasons for his adverse conclusion. The grounds in my opinion fail to show that conclusion to have involved the making of any error on a point of law. They do not amount to more than a valiant reassertion of the case on the facts.
17. No anonymity direction has been requested or made.
18. The determination of the First-tier Tribunal shall stand.

18 October 2016
Upper Tribunal Judge Macleman