Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07711/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
On 29 May 2014

Before

UPPER TRIBUNAL JUDGE DAWSON

Between

AZ
(anonymity order made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr K Gayle, Solicitor
For the Respondent: Mr S Walker, Senior Presenting Officer

DETERMINATION AND REASONS

1. The appellant who is a national of Iran appeals the decision of First-tier Tribunal Judge Brenells who dismissed the appeal on asylum, humanitarian protection and human rights grounds against the decision to refuse to vary his leave to remain and a further decision to remove him for reasons given in a determination dated 12 March 2014.
2. This is the second occasion the appellant has appealed to the Upper Tribunal. In a determination following a hearing on 26 November 2013 Upper Tribunal Judge Conway set aside a decision of First-tier Tribunal Judge Andonian who had dismissed the appeal against the 2013 decision on credibility grounds with the direction that no findings were to stand. Judge Brenells also disbelieved the appellant. Permission to appeal this decision was granted by First-tier Tribunal Judge Osborne based on the grounds before him which he considered to be arguable to which he added his own views at [3] of his decision on the approach he considered the judge should have taken.
3. The appellant's age is in dispute. It is the respondent's case that he was born in March 1992 and the appellant's case that he was born in July 1993. On either basis he is now indisputably an adult and was so at the time his appeal was heard before Judge Brenells.
4. The appellant's claim can be stated as follows. He lived in Iran with four sisters and parents. His problems began in October 2008 when his parents were arrested and detained by the authorities. His mother was released within three days but his father held in detention for nine weeks. Consolation by a friend on the release of his mother resulted in the appellant joining a group at the school that prepared anti-government leaflets. The appellant and four school mates prepared leaflets critical of the regime which they placed in the library. Whilst doing so he was caught by the chief librarian who called his brother, a policeman, named Hassan who took the appellant to his house later that day after indicating if he co-operated, everything would be sorted out. After making advances to the appellant and threatening to report the incident at the library to the police, Hassan then raped the appellant after he had resisted.
5. The following day Hassan explained he was prepared to help secure his father's release if he agreed to have sex with him. The appellant had no option but to agree. In December 2008 Hassan approached the appellant at school and informed him that his father had been released and they went together to the appellant's house to see his father. Thereafter Hassan took the appellant to his own house where there was further sexual activity. Encouraged by the librarian, the appellant had a further encounter with Hassan outside the school. On this occasion the appellant explained that he could not force him to have sex anymore. Hassan became angry and told the appellant if he did not want to be with him he should offer one of his sisters. The appellant said he would speak to his sister but never did.
6. In mid January 2009 the appellant threw a coca-cola can with petrol at a police car which caused an explosion. He had been assisted by a friend in obtaining the materials for this. The appellant ran away but a few people on the street had seen him do so. He did not return that evening but went to stay with a friend. An uncle then arranged for the appellant to leave the country. The appellant fears return to Iran having left there illegally and also because of a fear of being identified as a wanted person. The appellant relies on evidence including a summons issued against him in 2009 for disturbing public order and more recent evidence comprising an email from his sister and a letter from his father also sent by email in 2013. A letter from the appellant's GP dated 22 August 2013 confirms his treatment for depression with medication between 2009 and 2011.
7. The credibility of the appellant was challenged for detailed reasons in two letters from the Secretary of State. The first dated 7 August 2009 when he was granted limited leave to remain for some 30 days. The more recent letter dated 31 July 2013 in response to an application for further leave to remain during the currency of that limited period before expiry of his leave on 10 September 2009.
8. Judge Brenells set out his reasons why he did not believe the appellant over some fourteen paragraphs in his determination. He considered the appellant's credibility damaged in the following respects:
(i) The evidence was contradictory regarding the appellant's claim not to have more detail about his father's anti-regime activities;
(ii) Had it been true that his mother had been told by the authorities that his father was spying for the Israelis, the background evidence indicated he would have been detained for a very long time or been summarily executed;
(iii) Since there was no evidence that his father was released as a result of efforts by the policeman Hassan it was not accepted that the policeman had been instrumental in obtaining his release if indeed his father had been imprisoned;
(iv) It was not credible that even an immature 15 year old would be so foolish as to write anti-Iranian government slogans whilst on the school premises. The claim had been that this had been done clandestinely in the school library, in a toilet and in the classrooms during break time. Had he been doing so and placing them in the books it was inevitable that he would be caught at some time;
(v) The appellant's claim is that he was traumatised by the actions of Hassan and received treatment for depression. The only evidence was the letter from the GP (referred to above). The appellant had been looked after by Surrey County Council Social Services and had been professionally represented. He had not concealed his allegation of homosexual rape but there was no evidence he had suffered from post-traumatic stress disorder or that he needed any counselling or therapy;
(vi) It was not credible that in Iran which is the death penalty for homosexual activity of any kind a bisexual policeman would have risked his life by disclosing his sexuality so immediately and openly to a school child and that he would further risk exposure by asking for the appellant's sister in substitution;
(vii) In the light of the appellant's conduct at the hearing it was accepted that the appellant had been traumatised by some events which he had not fully disclosed.
(viii) The evidence had been inconsistent about the petrol bomb as to whether a can or bottle had been used. A can would not break and scatter burning fuel on impact. A further error by the appellant had been that he had not spotted that the missile had to be lit before being thrown.
(ix) Although acknowledging intelligent 15 year olds could easily make explosive devices the changing description of the bomb and the appellant's failure to explain how he acquired the necessary knowledge together with the lack of any evidence of testing such device led the finding that the appellant was not credible. There was no evidence which showed that the friend who had assisted was so disenchanted with the regime that he would associate himself with an attack on a police vehicle;
(x) The appellant had not discharged the burden of establishing that the summons issued on 12 April 2009 was a genuine document. He had not produced the envelope in which it had been sent, there was no evidence showing that it was in the format used by the Iranian authorities and there was no evidence that the impress stamp was genuine. A petrol bombing of a police car was likely to carry a charge more serious than disturbing public order;
(xi) The contents of the email from the appellant's sister was not accepted as truthful because the appellant had not told the truth about the events which he had said occurred before he left Iran.

9. The grounds of appeal argue that the analysis by the judge was undermined by a failure to provide sustainable reasons for adverse credibility findings and so amongst those listed by Lord Brooke LJ in R (Iran) & Ors [2005] EWCA Civ 982 in the following respects:
(i) The judge had materially erred by failing to understand a common feature of sexual abuse whereby the abusers were able to rely on their power and influence as well as the vulnerability of their victim.
(ii) There was no reason for the appellant to concede details of any other trauma he had suffered. The catalyst for the breakdown in court was questioning about the sexual abuse he had suffered.
(iii) The judge repeated many of the previous judge's mistakes. The Presenting Officer had been clearly so concerned about the case that she chose not to make detailed submissions merely adopting the refusal letter as a formality.
(iv) There was no contradiction over whether the appellant's father had discussed his anti-regime activities. His father's dislike of the regime and politics he had discussed as a result were different from the appellant's father discussing his own anti-regime activities.
(v) There was no evidence before the judge to suggest that the accusation that the appellant's father had been accused of spying for the Israelis was true.
(vi) It is unclear what evidence the judge expected the appellant to provide regarding the role of Hassan and the release of the appellant's father.
(vii) All anti-regime activity in Iran is risky yet it does take place and the judge had ignored the fact that clandestine activity can be undertaken in a public place. The judge had failed to provide any reasons for his finding that it was inevitable the appellant would be caught.
(viii) The judge appeared to have based an adverse credibility finding on the absence of further medical evidence and it made no mention of the various personal documents served showing the appellant's effort to get on with and improve his life.
(ix) As to the discrepancy regarding the reference to a can the judge had ignored the fact that even in professionally drafted statements mistakes can be and are often made. This applied also to whether the bomb was lit before it was thrown.
(x) The judge had accepted that petrol bombs were easy to make but then found the appellant had failed to explain how he acquired the necessary knowledge to make a petrol bomb and failed to mention any testing of such devices. The appellant had not been asked where he had obtained his knowledge from nor was he asked if he had carried out any tests.
(xi) The judge had stated the appellant had failed to provide any evidence of how the attack was planned or how he would escape and although the judge had asked a number of questions for clarification bordering on cross-examination these aspects had not been asked about.
(xii) There was no evidence to suggest that the summons was not in an established format.
(xiii) The judge gave no consideration to the letter from the appellant's father in which he had provided details of the ongoing harassment of the family.
10. I heard extensive oral submissions from Mr Gayle during which he methodically took me through each of the grounds relied on cross-referenced to the evidence including two statements from the appellant and the determination itself. He was unable to confirm whether a missing page, which dealt with questions relating to the nature of the device used for the bomb attack, from the record of interview (page 27) was in fact before the judge
11. In essence, Mr Walker argued that the grounds argued by Mr Gayle were no more than reasons challenges that did not disclose error. He accepted that the judge had not specifically referred to the letter from the appellant's father but had referred to it in the list of documents that he had before him. He did not consider that this was material. By way of response, Mr Gayle acknowledged the detail in which the grounds had been examined in his submissions and did nothing further except to refer to the failure by the judge to follow the guidelines set out by Upper Tribunal Judge Conway. He also referred to the failure by the judge to have regard to the appellant's age when the events occurred as observed by First-tier Tribunal Judge Osborne in granting permission to appeal. He accepted that the judge had not used the findings of First-tier Tribunal Judge Andonian as a starting point when I reminded him of the direction of Judge Conway that none of his findings would stand.
12. The grounds of application begin with a reference to R (Iran) and are prefaced by an assertion that the analysis of the judge is undermined by a failure to provide sustainable reasons for adverse credibility findings. In his oral submissions Mr Gayle argued in addition with reference to the rape that the findings were Wednesbury unreasonable in that no reasonable judge would have reached such a conclusion on this aspect. Otherwise the grounds of challenge are in terms that the findings were not supported by the evidence that the evidence pointed to another conclusion and the judge failed to take into account evidence.
13. At [9] of R (Iran) Brooke J referred to the guidance which the court had given in Subesh as follows:
"When the court gave this guidance in Subesh it was aware that it would not be of any relevance to an appellate regime in which appeals were restricted to points of law. It may be convenient to give a brief summary of the points of law that will most frequently be encountered and practised:
(i) making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
(ii) failing to give reasons or any adequate reasons for findings on material matters;
(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv) giving weight to a material matter;
(v) making a material misdirection of law on any material matter;
(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
(vii) making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made."
14. On the matter of perversity at [11] Brooke LJ observed:
"It may be helpful to comment quite briefly on three matters first of all. It is well-known that "perversity" represents a very high hurdle. In Miftari v SSHD [2005] EWCA Civ 481 the whole court agreed that the word meant what it said: it was a demanding concept. The majority of the court (Keene and Maurice Kay LJJ) said that it embraced decisions that were irrational or unreasonable in the Wednesbury sense (even if there was no wilful or conscious departure from the rational), but it also included a finding of fact that was wholly unsupported by the evidence, provided always that this was a finding as to a material matter."
15. Brooke LJ cited with approval Lord Phillips MR in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 at [19]:
"If the appellate process is to work satisfactorily, the judgment must enable the [IAT] to understand why the [Adjudicator] reached his decision. This does not mean that every factor which weighed with the [Adjudicator] in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the [Adjudicator's] conclusions should be identified in the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does not require the [Adjudicator] to identify and record those matters which were critical to his decision. If the critical issue is one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrate that his recollection could not be relied upon".
16. The appellant's claim arises out of the consequences of the arrest of his father. Against the background of the complaint in the second refusal letter that the appellant had provided no further evidence of the actual activities he had undertaken or what his mother had done, it was open to the judge to draw an adverse inference from the contrast between the claim that the appellant's father did not like the regime and always discussed politics within the family and the appellant's statement that he did not understand why the Secretary of State would expect him to have more detail about his father's anti-regime activities. It was also open to the judge to question the credibility of that detention if the reason had been as explained to his mother by the authorities that her husband had been held for spying for the Israelis. I am less clear about the judge's reference to there being no evidence that the father was released as a result of efforts made by the policeman. This aspect in isolation is not sufficient to undermine the reasoning as a whole.
17. As to the conclusions the judge reached about the likelihood of the risks taken by the appellant in writing the subversive material on the school premises this is really no more than a disagreement on the evidence. I also consider that the judge gave adequate reasons for doubting that the sexual assaults occurred. In the context of a state of affairs whereby the school librarian chose not to report the incident to the school or the security authorities but instead called his own brother who happened to be a bisexual policeman and who then took advantage of the appellant's vulnerability to assault him on the promise of the release of his father is a chain of events which the judge rationally questioned as likely in the light of the risks the policeman would have taken by flaunting his sexuality in this way. Essentially the judge was saying that this was not plausible and in my view, the judge was entitled to reach that conclusion which was rationally open to him on the claim that had been made.
18. There clearly were difficulties caused by the appellant first referring to a can rather than a bottle. I am satisfied from my reading of the determination that the judge gave sustainable reasons for concluding that this event did not occur. I should be slow to disturb the findings of the judge who had the benefit of hearing evidence from the appellant and evaluating that evidence in the context of the story as a whole. The concerns expressed by the judge which led to him to reject this aspect of the account were rationally open to him.
19. The final challenge relates to the judge's treatment of the corroborative evidence of the continuing interest in the appellant by the Iranian authorities. It was open to the judge to observe that the appellant did not produce the envelope in which the summons had been sent to him and furthermore he was entitled to observe that there was no evidence showing that the summons was in a format used by the authorities. Mr Gayle acknowledged that the US Department of State Report on which he relied did not refer to the form of summonses. The appellant's advisers were clearly aware of the credibility challenge in the refusal letter and it was incumbent upon them to demonstrate more than the production of the summons itself which it now turns out was scanned and sent in an email. The judge was entitled to question the description of the offence for which the appellant was wanted in the light of what he claims to have done.
20. As acknowledged by Mr Walker the judge did not explain how he factored in to his findings the letter from the appellant's father. Here again there was no evidence of why the father decided on this occasion to write. The picture painted by this material from Iran is an incomplete one.
21. There is no challenge to the basis on which the judge considered the evidence of the appellant's sister and there is no reason to believe that he did not also have regard to the letter from the appellant's father in reaching his conclusions on the appellant's credibility. Even if he had overlooked it, I do not consider that having regard to the reasons given for disbelieving the appellant that the letter from the father could have resulted in a different outcome. It does not address the matters of concern particularly with reference to the appellant's father's own circumstances. There is no explanation why he was arrested in 2008 and why he was released. It was reasonably open to him to do so if his statement was requested by the appellant and/or his advisers in the light of the challenge to this aspect by the Secretary of State in the refusal letters in particular [48] of the more recent one.
22. Apart from the unexplained reference to the absence of evidence regarding the manner in which the appellant's father's release had been obtained, the judge found he did not believe the appellant because of aspects intrinsic to the account and not because of the absence of corroborative material. In essence the letter asserts that the police are still looking for the appellant. It does not address the matters which the respondent had found undermined the claim and taking account of its contents and source I cannot see how it could have made a material difference in the face of the factors that led the judge to reject the claim.
23. The final point is one which had not been raised in the grounds of appeal but referred to in the grant of permission to appeal. There is no doubt that the experienced judge was conscious of the appellant's age and that the matters he found against him cannot simply be explained by reference to that age. His determination is not one which contains material error and for these reasons I dismiss the appeal in the Upper Tribunal.

Signed
Date 12 June 2014

Upper Tribunal Judge Dawson