Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08118/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 October 2016
On 12 December 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

MB
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Kirk - Counsel instructed by Fisher Jones Greenwood
For the Respondent: Mr K Norton & Mr S Whitwell - Senior Presenting Officers

Anonymity
I maintain the anonymity order made by the First-tier Tribunal, pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless the Upper Tribunal or other appropriate Court or Tribunal orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the Appellant. This prohibition applies to, amongst others, all parties and their representatives.
DECISION

Introduction
1. The appellant is a citizen of Iran who entered the United Kingdom in 2013 and claimed asylum on the day of his arrival. His application was refused by the Secretary of State in a decision of 11 May 2015 and, on the same date, a decision was made to remove the appellant from the United Kingdom.
2. The appellant appealed to the First-tier Tribunal ("FtT"). First-tier Tribunal Judge Wyman heard that appeal on 7 October 2015 and dismissed it on all grounds in a decision promulgated on 29 October 2015.
3. Subsequently, First-tier Tribunal Judge Cruthers granted the appellant permission to appeal to the Upper Tribunal on 24 November 2015.
Setting aside FtT's Decision
4. At a hearing on 25 January 2016 I concluded that the FtT's decision contained an error of law capable of affecting the outcome of the appeal and set that decision aside, for the reasons attached at Appendix 1 hereto. I directed that the decision under appeal be re-made by the Upper Tribunal.
Re-making of Decision
The Claim
5. The FtT summarised the appellant's claim thus:
"11. The appellant's case as set out in his screening interview dated 5 July 2013, his substantive interview dated 6 March 2015 and his witness statement dated 5 October 2015, in essence is as follows.
12. The appellant states that he fears persecution if returned to Iran from the Iranian Government. This is because he refused to carry out orders during his military service, following which he was detained and tortured. Furthermore, since coming to the United Kingdom he has converted to Christianity.
13. The appellant explains that he started his military service on 8 January 2009. After his initial basic training, he was sent to Kermanshah and performed the role of a guard. Kermanshah is on the border between Iran and Iraq. The appellant was on guard duty and was told that if he saw any people coming, he had to inform his commander, Jalal Narimani. The application explained that in May 2010, he saw a group of people approaching, from the other side of the border. He believed they were civilians as the group included women and children. However, his commander believed that the group were members of the PAJK Party. The commander ordered the appellant to fire at them. The appellant explained he could not do so as there were women and children amongst the group.
14. The commander then contacted the military police who came to take him to prison, as he had disobeyed the orders.
15. The appellant was taken initially to Sar Pol E Zahab and he was then transferred to Tehran. He was charged with co-operating with PJAK Party.
16. The appellant was detained for five-six months. Initially he was taken to the Military Court but then he was taken to the Revolutionary Court which deals with more serious crimes such as crimes against national security.
17. The appellant explained that he was given seven days' release from prison as his mother was unwell. As a surety, his family had to lodge a property deed with the court. He was informed that if he failed to return to prison after seven days, the property would be confiscated.
18. During this time in prison, the appellant stated that he was tortured by being beaten, punched and kicked. They also used batons and cables.
19. Following his 7 day release on compassionate grounds, the appellant's father found an agent called Fatah. He paid the agent 13,000 dollars. He was taken initially to Ouromiyea. He was then taken to a village on the border of Iran/Turkey. He then spent time in Turkey and Greece, remaining in Greece for approximately eighteen months. It was in Greece that the appellant started to attend church, but he did not convert until he came to the United Kingdom. He came to the United Kingdom in June 2013.
20. The appellant explained that the property previously owned by his father has now been confiscated. His parents have also received three summonses from the authorities: the first two summonses were received within one month. The third summons was issued 40 days after the second summons. The third summons stated that he would be arrested by the authorities, whenever he is found.
21. Furthermore his father's home has been raided more than 30 times by the authorities, looking for him. Sometimes the police would arrest his father for questioning. The raids on the house started after the appellant did not return to detention (at the conclusion of the period of seven days). The appellant explains that he has no evidence of the summonses. If his father had sent them to him in the United Kingdom, they would have been checked by the post office. His family would therefore be in significant trouble from the authorities as to why they had sent the documents abroad.
22. Since he came to the United Kingdom, he has converted to Christianity. He reads the Bible, in Farsi. The appellant confirmed that he is not evangelised in the United Kingdom."
6. The appellant's case before the FtT can be helpfully separated into five limbs: (i) he is a Christian convert and would, as a consequence, be at risk in Iran; (ii) he fled Iran whilst on bail after being imprisoned for offences allegedly committed whilst undertaking military service ("the military service" issue), (iii) he will be at risk at the point of return to Iran as a consequence of being required to divulge the contents of his asylum claim in the UK (the "risk at point of return" issue); (iv) his health issues would lead to his removal being in breach of article 3 ECHR; and, (v) his removal would breach article 8 ECHR.
7. In my earlier decision concluding that the FtT erred in law I recorded the position taken by Mr Kirk before me (on 25 January 2016) in relation to the aforementioned five limbs of the claimant's case in the following terms:
"Clearing the decks
4. On limb (i) of the appellant's claim the FtT judge disbelieved the evidence given in this regard and no discrete challenge has been brought before the Upper Tribunal to that conclusion. Indeed, at the hearing today Mr Kirk indicated that the appellant had abandoned the Christianity limb of his claim and would not be further pursuing it. Mr Kirk further indicated that limb (iv) - the health issue - was not discreetly pursued before the FtT and no challenge is brought before the Upper Tribunal in relation to it. As to the article 8 claim, Mr Kirk once again indicated that this is not pursued before the Upper Tribunal and further observed that it had not been pursued vigorously before the First-tier Tribunal."
I also said as follows:
"Decision
?It was agreed that the Upper Tribunal would re-make the decision under appeal for itself - the scope of such consideration being limited Refugee Convention, Humanitarian Protection and Article 3 ECHR grounds. As indicated above, the appellant has given notice of an intention not to pursue the Christian convert, and health issue limbs of his claim."
8. Despite this Mr Kirk asserted in his skeleton argument for the hearing on 21 October 2016, and again at that hearing, that the appellant's Christian conversion would lead, in part, to him being at risk at the point of return to Iran. When the aforementioned concession was drawn Mr Kirk's attention he submitted that it was never the case that the appellant had abandoned the 'Christianity' limb, and that he wished to rely upon the fact that he had converted to Christianity (as found by the FtT) in support of his claim that he would be at risk on arrival in Iran (as a consequence of having to divulge this fact to the Iranian authorities which, either of itself or in combination with his (i) illegal exit and (ii) having claimed asylum in the UK, would put him at risk of being persecuted).
9. There are now, therefore, two potential discreet strands to the appellant's claim: (1) he is at risk of being persecuted as a consequence of his claims to have fled the country whilst on seven-day release from prison (because of his asserted misdemeanours during military service), and, in the alternative; (2), he is at risk as a consequence of having left Iran illegally, claimed asylum in the United Kingdom and having converted to Christianity.
Burden and standard of Proof
10. It is uncontroversial that the burden of proof rests on the appellant and that the applicable standard of proof is a low one - i.e. is there a real risk that the appellant would suffer treatment amounting to persecution upon return to Iran.
Military Service Issue
Evidence
11. I have set out above the claim put forward in this regard by the appellant during the course of his interviews with the Secretary of State and in his witness statement of 5 October 2015. Since the promulgation of the FtT's decision the appellant has produced the following additional evidence in support of this limb of his claim:
(a) A witness statement dated 27 July 2016 (which was adopted in oral evidence before the Upper Tribunal)
For the most part the evidence contained therein mirrors that previously given; however, it is prudent to set out paragraphs 3 to 6 of this statement in full because they provided the foundation for a number of the SSHD's submissions:
"3. When guarding the border I would be in a watchtower. There were a lot of watchtowers along the border, and you could see from one tower to the next. There was no fence along this part of the border but it was heavily mined. There would be only one person in a watchtower at a time. You would be on watch for two hours and then rest for three hours. My duty involved reporting any suspicious activities by wireless or radio to the commander. The commander was stationed further back from us.
4. If any people approached the border, the rule was that we had to ask them to stop three times. If they did not stop, we had to shoot initially into the air and if they still did not stop, we had to shoot a second time and this time directly at them but below their waist.
5. On 19th May 2010 (29.02.1389) I was on duty guarding the border in a watchtower. My Commander, Warrant Officer 2 (Ostovar Dovom Jalal Narimani) came to inspect me and was in the watchtower with me. The commanders would come at any time to do inspections and would mostly do surprise visits to check if you are performing your duty or if you are sleeping whilst on duty. A group of people approached the border and my commander told me to shoot at them. My commander said that he recognised that the people are from PJAK and that I should not fire a warning shot and that I should just fire directly at them. PJAK is a group that opposes the Iranian Regime and is under the umbrella of the PKK (Kurdistan Workers Party). I refused to shoot at the people because there were women and children in the group. Both men and women fight for PJAK. They usually smuggle goods across the border as well.
6. ... My commander said 'shoot' and I said because there are women and children I will not shoot. We argued for a bit and then he called the military police. The military police then came and arrested me...".
(b) The appellant also gave oral evidence before the Upper Tribunal.
I do not recite the oral evidence at this stage, but do observe that I took the entirety of such evidence into account when coming to my conclusions.
(c) (What purports to be) a copy of a summons issued by the 4th Branch of the Court of the Islamic Revolution in Shiraz, dated "03/28/2012".
It is said that the copy of the summons was sent to the appellant by his grandfather on 5 January 2016 by way of email. A copy of the email is produced. The translation of the summons bears the appellant's name and provides a home address in Shiraz. It then reads (in its translated form):
"Offence: Cooperation with the Anti revolution organisation called Pejvak and a fugitive soldier.
Place of Attendance: the fourth branch of the Court of the Islamic revolution in Shiraz.
Date of Attendance: Monday 14/05/2012. You must attend on the date specified otherwise the court will carry on the trial in your absence.
Signature of the person who has been summoned: The head of the fourth branch of the Court of the Islamic revolution in Shiraz: Naseri.
If you have got a lawyer, introduce him and if you have a witness of the incident, introduce him before this appointment so that they could be summoned.
Your absence would result in your arrest and if you don't attend at the arranged time, the court will pass a verdict in your absence. If you had an acceptable excuse according to the paragraph (113) of the civil penal ordinance, present it to the court."
The author of the translation is not identified.
(d) The following three 'expert' reports have been provided:
(i) A report from a Dr F E Winton BSc, MB.BS, FRC Psych (Consultant Psychiatrist), dated 2 May 2016.
This report runs to nineteen pages. The pertinent conclusions therein are as follows:
The appellant "qualifies for the diagnosis of a moderate depressive episode ICD 10 code F32.1";
The appellant qualifies "for the diagnosis of post traumatic stress disorder ICD 10 code F43.1".
The following passages from the report are also salient:
"7.2.1 v) ? It is my opinion that it was experience of torture which led to the development of his PTSD.
7.5.1 It is my opinion that both his psychiatric conditions could impact on his ability to concentrate on the proceedings and impair his ability to recall events. This is because it is recognised that these mental illnesses can impair concentration and memory.
7.5.2 With regard to depression the main cause is mental fatigue. This is a core symptom of depression and is made worse in [MB's] case by his chronic insomnia. People with depression have reduced motivation and this lack of mental energy means that they have to work harder than the average individual in order to focus on a task. As a result it is more difficult for them to apply the necessary energy to recall events. This lack of mental energy also reduces the individual's ability to concentrate.
7.5.3 With regard to post traumatic stress disorder it is the hyperarousal/anxiety which is the mechanism for impaired memory. The anxiety leads to racing thoughts which tend to jump around from topic to topic in the individual's mind. Effectively their mind has a stream of consciousness which is hard to control to the point whereby it cannot be channelled into a constructive direction. As a result this jumping from topic to topic interferes with memory tasks and thus disrupts the concentration necessary for attending to a task such as focusing on questions and recalling events.
7.5.4 This became clear during the interview I had with him when he tended to wander off the point at a tangent. This was obvious in the way he answered questions and was confirmed by the interpreter who at times struggled to get him to answer the question asked. If he found it difficult to answer in a concise and clear manner to a psychiatrist, then in my opinion it would be much more difficult for him to answer questions appropriately in the more highly charged atmosphere of the Tribunal. There would be so much at stake for him in the hearing as the future of his life, according to his perception, would depend upon it. As a result his tendency to wander off the point and give inappropriate answers would be significantly raised.
....
7.5.6 In summary, it is almost inevitable given [MB's] current lack of mental health that he will be inconsistent when giving evidence. However, the research makes it quite clear that 'inconsistency is the norm'. This will be particularly the case given that he suffers from depression and PTSD."
(ii) A report authored by Samim Rashti, dated 22 January 2016, and headed "Authentication Report".
The author of the report is "a lawyer qualified in Iran with experience of such documents [summons] at first hand". The report exclusively considers the summons identified in paragraph 11(c) above.
It confirms that the Iranian courts were open on the dates featured within the summons; observes that the text of the summons is in the correct format for 2012, and identifies that there are no grammatical errors within the summons. It further confirms that both the emblem at the top and the stamp in the body of the summons are appropriate for the respective branch for the Revolutionary Court.
The report identifies (paragraph 20) that in accordance with Article 69 of the Iranian Law of Civil Procedure, the summons was required to be served on the appellant. However, if the appellant was not available then it could be assigned to one of his servants or family members at the same address.
In conclusion, the author finds there to be no fault with the document and that it is his/her view that it is a genuine document. It is said that it was issued by the proper source, the procedure for issuing the summons was correct, and that it contains the "main contents of a reliable court summons".
(iii) A report authored by Ms Anna Enayat, an expert "on the human rights situation in Iran".
Ms Enayat, who is well known to the Upper Tribunal, observes that the evidence provided by the appellant in relation to the name and activities of the Brigade he claims to have been assigned to, is accurate to the best of her knowledge. In particular, he correctly identifies where the Brigade was stationed (Ms Enayat also providing the additional observation that such area is not an important smuggling route) as well as the role it fulfils on the Iran/Iraq border.
In section 2 of her report Ms Enayat sets out details relating to PJAK, and in particular its confrontations with the Iranian authorities. She identifies a number of incidents that occurred in early May 2010, concluding as a consequence that: "it is plausible that in early May 2010 (the start of the fighting season) military officials along the Kermanshah/Iraq borders were on alert for PJAK operatives".
The section of the report that follows deals with the plausibility of the evidence provided by the appellant as to the legal process he purports to have undergone in Iran, and can be summarised as follows:
It is plausible, given the nature of the accusations against the appellant, that the military prosecutor's office would at some stage have transferred his case to the Revolutionary Court;
In the Iranian criminal justice system suspects are not charged until the case against them has been investigated under the supervision of an investigative judge. It is the judge who would then issue a temporary detention order, which may be renewed at bi-monthly intervals;
Pursuant to Articles 37 and 38 of the Military Penal Code, if a soldier is deemed to have disobeyed an order to fire on the enemy, the punishment is a 3 to 15 year term of imprisonment;
For a person described as a mohareb [in armed rebellion against the state] who could be a sympathiser of an armed political group, the nature of the punishment would be at the discretion of the judge and includes a death sentence or a term of imprisonment;
It is common in Iran for a criminal act or incident to engage more than one jurisdiction within the judiciary.
In relation to the appellant's evidence that he was allowed family visits whilst he was in prison, Ms Enayat concludes as follows, at paragraph 31:
"It is in fact plausible that despite the severity of the accusations against him, MB would have been able to see his family once investigations were complete. It is also plausible, as shown by some of the cases I cite below, that more than a year might have passed without a trial and conclusive ruling in his case."
As to the appellant obtaining leave from prison, a matter that Dr Kakhki also commented in his expert report (see Error of Law decision), the following is said:
"Prison leave is commonly granted in Iran to convicted prisoners or, in certain circumstances after the interrogation period is complete, to those who are awaiting trial and have not been otherwise allowed bail.
The type of visit permitted to a sick relative of the first degree for a very restricted period is a subcategory of lawful prison leave.
The law in effect at the time of MB's release was Articles 213-216 of the Executive Regulations of the Prisons 20/9/1384=11 December 2005 (which replaced regulations issued in 2001).
...
To conclude this section: I note that MB's account of being allowed a 7-day period of prison leave, on bail, to visit his sick mother... is consistent with Iranian prison regulations and the laws and practices governing release on bail in Iran....".
Submissions
12. Mr Whitwell accepted that if the Tribunal were to find the appellant's account in relation to the military service issue to be truthful, then his appeal must succeed. He accepted that in such circumstances there would be a real risk of the appellant suffering from persecutory treatment from the Iranian authorities upon return.
13. Mr Whitwell's primary submission, however, was that the appellant's evidence was untruthful. He relied, in support of this assertion, both on matters relayed in the SSHD's decision letter and an additional nine features of the appellant's evidence which, he asserted, served to undermine it credibility.
14. Turning first to the refusal decision, therein the SSHD drew particular attention to the following features of the appellant's evidence, which led her to disbelieve the account given:
The appellant gave vague, and limited, details about his role and training in the military (although it was accepted that the appellant correctly identified one of the weapons used by the Iranian army);
The appellant's assertion that his family were allowed to visit him during his time in prison is inconsistent with the background information on Iran (which highlights that Iranian prison authorities routinely deny political prisoners regular visits by their loved ones);
The fact that the appellant's family were able to secure the appellant's release from prison by acting as sureties is inconsistent with the background information;
The claim by the appellant that his family have not experienced any problems with the Iranian authorities for the past 8-9 months (at the time of the interview) is inconsistent with his evidence that he is still of interest to the Iranian authorities;
The appellant was unable to recall the specific dates of his release from prison and attendance at Court.
15. At the hearing Mr Whitwell relied upon the following additional points in support of his submission that the appellant had not given credible evidence:
The appellant's assertion to be a genuine convert to Christianity was not found truthful by the FtT;
The appellant has provided inconsistent evidence as to the time of day the disagreement with his commanding officer occurred; stating in his original witness statement that it had occurred in the late afternoon, but in oral evidence stating that he could not recall anything other than it did not take place at night;
The appellant has provided inconsistent evidence as to whether he warned the group of suspected PJAK members prior to being told to shoot them by his commander. In his first witness statement he indicated that his commander had told him to warn the group to stop and if they did not stop then to shoot them. In his witness statement of 27 July 2016 he asserted that his commander had told him not to fire a warning shot before shooting at the group. In oral evidence before the Upper Tribunal the appellant stated that he had warned the group and also fired a warning shot;
The appellant provided inconsistent evidence regarding the reasons given by his commander for requiring him to shoot at the group. In his most recent witness statement the appellant asserted that the commander had told him that he recognised the people as being from PJAK. In oral evidence the appellant stated that his commander had not told him why he suspected the members of the group to be from PJAK;
In his oral evidence the appellant stated that he had warned the group to stop and that they had done so. In such circumstances the appellant's account of having disobeyed his commander's orders by not shooting at the group is inconsistent;
The appellant's assertion that he did not know what happened to the group after they had stopped is implausible - given that he had remained on the watchtower for a few minutes after the warning was given;
The expert gave evidence that at the time of the claimed incident the situation on the Iran/Iraq border was tense with there being a heightened scrutiny on PJAK at the time. The appellant did not provide the same evidence, when he could be expected to have done so;
The appellant failed to adequately explain why there had been a delay of three and a half years between his family purportedly receiving the summons and a copy of that summons being sent to the United Kingdom for the consideration of the Secretary of State and the Tribunal;
16. Mr Whitwell further submitted that no weight should be placed on Dr Winton's report, it being asserted it was based on the assumption that the events in Iran had been truthfully recounted by the appellant, and that it was such events which had caused the deterioration in the appellant's mental health.
17. In response Mr Kirk submitted that the appellant had given a credible account of the events which had caused him to flee his homeland.
18. It was accepted that there were a number of discrepancies in the appellant's evidence of the events of 19 May, but it was observed that the appellant had explained in oral evidence that the events had happened quickly. Mr Kirk also took the Tribunal through the relevant passages of the report from Dr Winton - asserting that the inconsistencies and discrepancies which had arisen were fully explained by the evidence therein.
19. Attention was also drawn to the appellant's explanation as to why the summons had not been produced earlier i.e. because his family were fearful of sending it by post as a consequence of the likelihood of the post being opened. It was further observed that this explanation had been accepted as being reasonable by the SSHD in her decision letter. It was the terms of the FtT's decision that was the eventual triggered for the appellant to obtain a copy of the summons via email.
20. Mr Kirk summarised by observing that the appellant is not a sophisticated and well-schooled individual, but that he had nevertheless produced a complex and unusual account which was entirely consistent with the known circumstances in Iran. This, he submitted, is demonstrative of the fact that the appellant was a witness of truth.
Decision and Reasons on Military Service Issue
21. In coming to my conclusion I have considered all of the evidence in the round, including that which is not specifically mentioned herein. Having done so I am of the conclusion, for the reasons which follow, that the appellant has demonstrated the truth of the evidence he has given on this issue to the required lower standard and that, as a consequence - and in line with the concession made by the SSHD - his appeal is to be allowed on the basis that his removal would be in breach of the Refugee Convention.
22. I treat as a matter adverse to the appellant the fact that he was found by the FtT to lack credibility in his assertion to be a genuine Christian convert. This finding has not been successfully challenged and demonstrates that the appellant is a person who is prepared to lie to the SSHD and the Tribunal in furtherance of his attempts to remain in the United Kingdom. This I find to be a matter of some significance. This does not mean, however, that everything the appellant has said is necessarily tarnished with the same brush, but my consideration of his claim to be at risk as a consequence of the events said to have occurred on 19 May 2010 must be viewed through the lens of his previous attempts to deceive the UK authorities.
23. When looking at the evidence as a whole I agree with Mr Kirk that the appellant's evidence is entirely plausible, it being consistent with events known to occur in Iran. In this regard I place weight on the evidence provided by Ms Enayat (which is also confirmed by the evidence of Dr Kakhki).
24. I reject the SSHD's assertions that it is implausible that the appellant would have been allowed visitors whilst in detention, or that he would have been released for seven days in order to visit his sick mother. The expert evidence identifies that each is plausible in the context of the circumstances put forward by the appellant.
25. More generally, I observe the high degree coincidence between the appellant's evidence relating to the Brigade he purportedly served in, its area of operation, his experiences in detention and the operation of the Court system in Iran with what, according to Dr Enayat, is objectively known about such matters. This high degree of coincidence is matter which carries weight in the appellant's favour, although I also bear in mind that it cannot be discounted that the appellant could have been aware of all, or some, of such matters even if his account is not truthful.
26. I do not accept the SSHD's assertion that the appellant gave vague, and limited, details of his military training and that this should weigh against him in the overall credibility assessment. The appellant answered, with reasonable particularity, the questions asked of him. If the SSHD wanted to test the depth of the appellant's knowledge on this subject she should have asked further questions in relation to it, either at the interview or during cross-examination. The fact that she did not do so cannot be held against the appellant.
27. Turning to the copy of the summons. The delay in its production is certainly a matter which weighs against the appellant when this document is being considered. Although I accept, as did the SSHD, that the appellant would not wish such a document to be sent via the postal system from Iran, there is no satisfactory explanation as to why a copy of the document was not sent by email at an earlier juncture.
28. This though is not the only aspect of my considerations relating to the summons and, itself, must also be viewed in conjunction with the evidence provided by Samim Rashti - summarised above - which, whilst provided only in relation to a copy of the summons and nor the original, identifies that the features of the document produced are all compatible with a genuine document. I have born in mind, however, that this report does not say anything about the reliability of the contents of the document and in particular no observations are made about the possibility of documents of this type being obtained, which have all the hallmarks of being genuine and reliable but which are not.
29. Mr Whitwell put at the centre of submissions discrepancies by the appellant in his description of the events which took place on the 19 May 2010, and in particular those which were said to have occurred on the watchtower.
30. That there were such discrepancies is not a matter of dispute. In his evidence the explains these by asserting that these events took place over a very short period of time in a chaotic and heated environment - the inference being that as a consequence his recollection of the minutia might not be complete or entirely accurate. This in my view is a plausible explanation for the discrepancies, but clearly not the only explanation. Another explanation may be that the appellant is not telling the truth. A further explanation is proffered in the report from Dr Winton, which identifies the appellant as suffering from PTSD and depression - conditions which, it is said, can lead to inconsistent recall of events.
31. Mr Whitwell invites the Tribunal to attach no weight Dr Winton's evidence, as consequence of it being founded, it is said, on an assumption that the appellant was telling the truth in relation to the events which it is claimed occurred in Iran.
32. Dr Winton is clearly qualified both to pronounce upon the appellant's mental health condition, and the consequences thereof. The diagnosis is not, as claimed, founded on the truth of the appellant's evidence, but rather looking at the appellant's symptoms against the criteria identified in the International Classification of Diseases - in the context of the evidence given. There is nothing before me which casts doubt on the accuracy of Dr Winton's diagnosis or as to the consequences thereof. I do, however, attach no weight on one aspect of the evidence provided - the conclusion at paragraph 7.1.2(v) that the appellant's PTSD was caused by his experience of torture. Absent a careful, and evidenced, analysis ruling out other possible causes, the highest this could rationally be put this is that the torture the appellant claimed to have received was capable of causing the mental health condition he now suffers from.
33. The fact remains, however, that there were inconsistencies in the appellant's recollection of the events of 19 May 2010, and I have weighed them in the round with all the other evidence before me, including the aforementioned explanations for those inconsistencies.
34. Having taken into account all of the evidence and the parties' submissions, I am prepared to conclude that, to the lower standard, the appellant has told the truth the events which led him to flee Iran. For the most part the appellant gave credible and consistent evidence in relation to those events, and his evidence is plausible when viewed in the context of the circumstances in Iran. I attach little adverse wright to the discrepancies in the appellant's account. These relate to the minutia of the circumstances on the watchtower and must be viewed in the context of the timeframe over, and circumstances within, which they occurred, as well as the appellant's current mental state.
35. In summary, I accept that the appellant undertook military service as claimed, disobeyed a commanding officer's order to shoot at a group of people approaching the Iranian border, was subsequently arrested, detained, tortured and was then released on compassionate grounds before the judicial process was complete. I also accept that he subsequently fled the country instead of surrendering himself as required and that, as a consequence, a summons has been issued for his arrest.
36. If the appellant is returned to Iran, there is a real risk he will be detained at the airport and thereafter subject to persecutory treatment in detention. The SSHD accepts that such persecution would be based on a political opinion imputed to the appellant as a consequence of his refusal to shoot as persons who were believed to be PJAK operatives.
37. The appellant therefore succeeds on Refugee Convention grounds. As a consequence, his appeal brought on Humanitarian Protection grounds must be dismissed. It follows from the appeal being allowed on Refugee Convention grounds that it must also be allowed on Article 3 ECHR grounds.
38. In such circumstances I need not deal with the second limb of the appellant's claim.

Notice of Decision

For reasons given in Appendix 1 hereto the decision of the FtT is set aside.

Upon re-making the decision under appeal I allow it on Refugee Convention and Article 3 ECHR grounds.

Signed:

Upper Tribunal Judge O'Connor

Appendix 1
DECISION AND DIRECTIONS
(Delivered orally 25 January 2016)
Introduction
1. The appellant is a citizen of Iran who entered the United Kingdom in 2013 and claimed asylum on the day as his arrival. This application was refused by the Secretary of State in a decision of 11 May 2015 and, on the same date, a decision was made to remove the appellant from the United Kingdom.
2. The appellant appealed this decision to the FtT. First-tier Tribunal Judge Wyman heard that appeal on 7 October 2015 and dismissed it on all grounds in a decision promulgated on 29 October 2015. FtT Judge Cruthers granted the appellant permission to appeal to the Upper Tribunal in a decision of 24 November 2014. Thus the matter comes before me.
Appellant's case before FtT
3. The appellant's case before the FtT was founded on five limbs: (i) he is a Christian convert and would, as a consequence, be at risk in Iran; (ii) he fled Iran whilst on bail after being imprisoned for offences allegedly committed whilst undertaking military service ("the military service" issue), (iii) he will be at risk at the point of return to Iran as a consequence of being required to divulge the contents of his asylum claim in the UK (the "risk at point of return" issue); (iv) his health issues would lead to his removal being in breach of article 3 ECHR; and, (v) his removal would breach article 8 ECHR.
Clearing the decks
4. On limb (i) of the appellant's claim the FtT judge disbelieved the evidence given in this regard and no discrete challenge has been brought before the Upper Tribunal to that conclusion. Indeed, at the hearing today Mr Kirk indicated that the appellant had abandoned the Christianity limb of his claim and would not be further pursuing it. Mr Kirk further indicated that limb (iv) - the health issue - was not discreetly pursued before the FtT and no challenge is brought before the Upper Tribunal in relation to it. As to the article 8 claim, Mr Kirk once again indicated that this is not pursued before the Upper Tribunal and further observed that it had not been pursued vigorously before the FtT.
Discussion on whether the FtT erred of law
5. The focal points of the appeal before the Upper Tribunal are the 'military service issue' and the 'risk at point of return' issue.
Military Service issue
6. The appellant's claim before the FtT on the military service issue was described as follows in the FtT's decision:
"13. The appellant explains that he started his military service on 8 January 2009. After his basic training he was sent to Kermanshah and performed the role of a guard. Kermanshah is on the border between Iran and Iraq. The appellant was on guard duty and was told that if he saw any people coming, he had to inform his commander. The appellant explained that in May 2010 he saw a group of people approaching from the other side of the border. He believed that they were civilians as the group included women and children. However his commander believed that the group were members of the PAJK Party. The commander ordered the appellant to fire at them. The appellant did not do so because there were women and children amongst the group."
14. The commander then contacted the military police who came to take the appellant to prison because he had disobeyed orders.
?
16. The appellant was detained for five-six months. Initially he was taken to Military Court but he was then taken to the Revolutionary Court? .
17. The appellant explained that he was given seven days' release from prison, as his mother was unwell. As a surety, his family had to lodge a property deed with the court. He was informed that if he failed to return to prison after seven days, the property would be confiscated.
19. Following his 7 day release? the appellant's father found an agent?"
The appellant then fled the country and came to the United Kingdom. Since his arrival his "parents have received three summonses from the authorities?" [20] "?and his father's home has been raided more than thirty times by the authorities looking for him." [21]
7. The FtT did not accept the truth of the evidence given by the appellant on this issue, providing six discrete reasons for so concluding; set out in paragraphs 107 - 115 of its decision. There is an equal split between the number of reasons subject to challenge in this appeal, and those which remain unchallenged.
8. The reasons and conclusion found in paragraph 107 of the FtT's decision fall within the former category and need, therefore, to be the subject of my consideration. In paragraph 107 the FtT states:
"?[t]he appellant stated that his commander told him to shoot the group of people which he refused to do. The appellant has not explained as to why his commander would order him to shoot directly at a group of (potentially) civilians without giving them a warning. Nor has he explained why his commander was not reprimanded as he ordered the appellant to shoot, in contradiction of the standard procedures."
9. In my view it was plainly irrational of the FtT to require the appellant, in the circumstances of the instant claim, to provide an explanation for his commander's actions, or indeed why the commander was not reprimanded. If the appellant's account is to be believed there was no opportunity for him to seek explanation from his commander; indeed, he was the subject of arrest and detention at his commander's behest and consequently even if such an opportunity did arise it is difficult to foresee the commander complying with any request for explanation made to him by the appellant. It is worthy of observation that the FtT dies not disclose in its decision how it contended the appellant could, or should, have come by the information identified in paragraph 107. In such circumstances any evidence the appellant could give on this issue would necessarily be nothing more than speculation.
10. The second challenge brought to the FtT's conclusions on the military service issue revolves around the reasoning deployed by the FtT in latter stages of paragraph 113 of its decision:
"The appellant has stated that he was released as his mother has been ill and suffering from MS, but no medical evidence whatsoever has been provided relating to his mother's illness, despite the fact that these documents clearly would not be difficult to provide should they exist. He has also failed to provide any evidence that the Iranian government allows individuals to be released, even for just a week, due to the ill-health of a family member." (emphasis added)
11. The appellant's criticism of the emphasised sentence is well made in my conclusion. The Secretary of State accepted, in paragraph 16 of her Reasons for Refusal Letter, that the manner in which the appellant claimed his release was secured is consistent with the background information relating to Iran.
12. There was, in addition, expert opinion before the Tribunal in the form of a lengthy report pertaining to the circumstances in Iran authored by Dr Heyayati-Kakhki. At page 16 of this report the expert opines that the appellant's account of being released for a short period so that he could visit an ill family member is plausible.
13. The FtT's conclusion is in direct contradiction to the aforementioned evidence. In such circumstances it is beyond dispute that it was incumbent upon the FtT to engage with the report and provide clear and cogent reasons for departing from the evidence contained therein. The FtT's decision discloses no such engagement or reasoning process.
14. The final aspect of the challenge to the FtT's credibility assessment relates to paragraph 114 of its decision:
"The appellant claimed that he was beaten and tortured whilst interrogated, but has not provided any medical report whatsoever. If he was beaten as claimed, even though the arrest was in 2012, there would still be marks on his body that could have been witnessed by a GP or the Medical Foundation for Victims of Torture. Yet no medical evidence whatsoever has been provided."
15. This conclusion has to be set in the context of the appellant's testimony that he had no marks or injuries on his body. If this is correct it provides an unassailable explanation as to why the appellant did not produce medical evidence relating to 'marks on his body'.
16. Underpinning FtT's conclusion in paragraph 114 of its decision is an impermissible infringement on procedural fairness. There was no evidence before the FtT, save for the appellant's, going to the question of whether the appellant would have marks on his body at the time he entered the UK as a consequence the type of ill treatment he allegedly suffered whilst in detention in Iran. In order to found its conclusion, the FtT must have either (a) used its own expert knowledge, which it does not identify in its decision and did not disclose to the parties, (b) obtained and relied upon other expert evidence not referred in its decision or identified to the parties, or (c) taken judicial notice of the fact that the type of ill treatment the appellant claims to have suffered from would always lead to their being marks on the recipient's body. Each of these three possible approaches plainly admits of an error by the FtT.
17. Complaints in relation to the former two possibilities require no further explanation. The complaint in regard to the third possibility i.e. the taking of judicial notice, is less obvious but no less justifiable. In order for judicial notice of a fact to be taken, that fact must be so notorious or well known that it cannot reasonably be doubted. In the instant scenario that is obviously not the case given the number discreet factors which must feed into the assessment of whether a 'mark' would be left on the body of a recipient of the sort of ill treatment allegedly suffered by the appellant. In any event, if the FtT did intend to take judicial notice of such a matter it ought to have put the appellant on notice of this.
18. Reading the FtT's decision as a whole in my conclusion the errors of law therein, which I have identified above, are capable of affecting the outcome of its assessment of the appellant's credibility and the outcome of appeal. That is not to say that it is inevitable that the appellant has given a credible account of the events which he asserts led him to flee his homeland, but rather that the FtT's assessment of the truth of his evidence relating to the military service issue cannot stand. For this reason alone, the FtT's decision must be set aside.
Risk at point of return issue
19. For the sake of completeness, I go on and deal with the challenge brought to the FtT's consideration of the fifth limb of the appellant's claim i.e. the risk at the point of return issue. This limb of the appellant's claim relates directly to evidence given by the expert to the effect that the appellant would be returned to Iran using a temporary travel document, which would lead to him being the subject of rigorous questioning at the point of return. He would be required to divulge the nature of the account he had given to the UK authorities in pursuance of his asylum application, and the fact that he had provided such an account to the UK authorities, whether credible or not, would be sufficient to lead to his ill-treatment by the Iranian authorities.
20. The FtT failed to engage with this limb of the appellant's claim, which of itself constitutes a discreet error in its decision. I observe, however, that the expert's conclusions appear to be founded on information which is now four or five years old and there is no indication that the expert has given consideration to the relevance of the absence of recent evidence in this regard. Given my findings on the first ground of appeal I do not need to determine whether the failure of the FtT to deal with the 'risk at point of return issue' was material to the outcome of the appeal. This will be a matter to be considered at the next stage of these proceedings.
Decision
For the reasons set out above I set aside the decision of the FtT.
It was agreed that the Upper Tribunal would re-make the decision under appeal for itself - the scope of such consideration being limited Refugee Convention, Humanitarian Protection and Article 3 ECHR grounds. As indicated above, the appellant has given notice of an intention not to pursue the Christian convert, and health issue limbs of his claim.
The hearing of the appeal is adjourned so as to enable the appellant to obtain further evidence.