Tribunal decisions

The decision

IAC-AH-sar-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/08367/2015

THE IMMIGRATION ACTS

Heard at HMCTS Employment Tribunals,
Liverpool
Decision & Reasons Promulgated
On 12th January 2017
On 13 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Mr ALI ASGHAR MORAD SHINI HAIDARY
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr J Nicholson (Counsel)
For the Respondent: Mr G Harrison (Senior HOPO)

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Fox promulgated on 16th June 2016, following a hearing at Manchester on 7th June 2016. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a male, a citizen of Iran, who was born on 26th March 1985. He appeals against the decision of the Respondent dated 12th May 2015 refusing his claim for asylum and humanitarian protection on the basis that the Respondent did not accept that the Appellant had genuinely converted to Christianity and was at risk of ill-treatment in Iran.
The Appellant’s Claim
3. The Appellant’s claim is that he had already undergone a baptism ritual in Iran approximately two years ago but failed to acknowledge this event to his chosen pastor in the UK who appeared before the Tribunal to give evidence of the Appellant’s second baptism into the Christian faith.
4. The Appellant had become interested in Christianity in Iran when his friend, Mojtaba, had an accident and went into a coma and when the Appellant visited Mojtaba he noticed that his other friend, Sajad, was praying for him and mentioned Jesus Christ and prayed with the whole of his soul.
5. The Appellant did not know that Sajad was a Christian prior to this. He asked him about it afterwards and Sajad told him that he had changed his religion a while ago and had been attending a house church. It is then that the Appellant had become interested. His father, however, was a preacher in a mosque and of the Muslim faith.
The Judge’s Findings
6. The judge observed how the Appellant had said that he had studied the Bible and particularly enjoyed the Book of Matthew but he had failed to recall a fundamental aspect of his favourite passage as he claimed that all twelve disciples were present (paragraph 43) when they were not.
7. The judge also rejected the Appellant’s claim that Sajad had prayed openly in front of him at the hospital because it was contrary to the objective evidence that showed there to be social hostility and legal sanctions for Christians in Iran (paragraph 44).
8. But most importantly, the judge could not comprehend how it was that the Appellant had allegedly converted to the Christian faith and had baptism in Iran but failed to mention this to his pastor in the UK from whom he had a second baptism (see paragraph 50). The claim was dismissed as lacking in all credibility.
Grounds of Application
9. The grounds of application allege that the Appellant had provided independent evidence of a genuine conversion to Christianity in accordance with the guidance given in the case of Ali Dorodian (01TH01537) and the judge gave inadequate reasons for the rejection of this independent evidence.
10. On 5th July 2016, permission to appeal was granted.
11. On 19th July 2016, a Rule 24 response was entered by the Secretary of State to the effect that the primary issue before the judge was whether the Appellant genuinely converted to Christianity and this turned on the Appellant’s credibility.
12. The judge considered the evidence from the pastor in some detail, and in 30 paragraphs, gave a number of reasons for not finding the Appellant to be credible.
13. The fact that the Appellant did not agree with them did not make the findings wrong in law.
The Hearing
14. At the hearing before me Mr Nicholson emphasised in particular the fact that the rule in Ali Dorodian had been complied with because a pastor had attended the hearing and given evidence in support of the Appellant’s conversion.
15. Second, the judge did not find the pastor to be lacking in credibility at all because he asked him questions and,
“The pastor explained that there are three categories of church attendee: congregants, attendees and members. Congregants are passive attendees, attendees actively engage with the faith but may not have been baptised and members are baptised and have proven their formal commitment to the faith. The Appellant falls within the category of attendee” (paragraph 29).
16. Third, although an expert report from Father Braunston had been provided (paragraph 65) which was criticised by the judge, the criticism was on the basis that Father Braunston did not know how the Appellant had answered in his interviews, but this expert report was unnecessary given the fact that the pastor had attended and the Appellant had given the evidence that he had done, and especially given that the answers he gave during interview were broadly correct.
17. The Appellant was asked a great many questions during his interview and they are all correct.
18. Fourth, the judge states at paragraph 61 that, “there is no reliable evidence to demonstrate that a clergyman would perform a baptism upon a person in these circumstances”, but the reality is that there was evidence before the judge that a clergyman would provide baptism and had done so in this case.
19. Finally, there appears to be a suggestion that Father Braunston was conflicted in some way but, although this is raised in the body of the evidence, it is not determined by the judge, and there was no conflict of interest in what the expert, Father Braunston, had said and the duties that he performed.
20. For his part, Mr Harrison relied upon the Rule 24 response.
Error of Law
21. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows.
22. First, the fact that a pastor came and gave evidence in support of the Appellant’s baptism complies with the rule in Ali Dorodian unless the view of a senior church official can be said to be lacking in credibility.
23. Second, this is not the case because the judge expressly found that, “while the pastor is sincere I do not accept the proposition that the Appellant would fail to recognise the significance of this event and fail to disclose this material information to his new pastor”, referring to his earlier baptism two years ago (paragraph 48). This does not necessarily follow.
24. There may be any number of reasons why the Appellant failed to disclose his earlier baptism but, in any event, even if he ought to have disclosed the baptism, the pastor explained the three categories of persons who come to the church and had given evidence that the Appellant fell into the category of a “church attendee” (paragraph 29). This would be enough for him to attract adverse attention and to be at risk of ill-treatment in Iran.
25. Third, the Appellant’s knowledge of his faith, as expressed in his interview, is not something that leads to the decision that the judge was led to were it not for the fact that the judge took exception to the Appellant not having told his current pastor about his baptism in Iran, for which, as I have indicated, there may be any number of reasons.
26. Finally, the pastor’s role in this case was one not to be minimised on the evidence before the judge. Indeed, the judge made the following observation:
“I am conscious to acknowledge the distinction between heart knowledge and head knowledge. It is entirely plausible for an individual to hold religious beliefs without detailed knowledge of the faith. However I note that the pastor confirmed that religious knowledge is tested as part of an assessment of an individual’s credibility. This is principally the same procedure followed by the Respondent though I acknowledge the pastor’s superior theological understanding” (paragraph 54).
27. The judge acknowledged “the pastor’s superior theological understanding” and acknowledged the fact that the pastor confirmed an assessment procedure to assess the individual’s credibility.
28. It is in these circumstances then difficult to see how, with the finding that “the pastor is sincere” (at paragraph 48), and with the acknowledgement that the pastor explained that there were three categories of church attendee, it can be said that his assessment of the Appellant was in any way lacking.
29. For all these reasons, the decision fell into error.

Notice of Decision
30. The decision of the First-tier Tribunal involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that it falls to be set aside. I set aside the decision of the original judge. I re-make the decision as follows. This appeal is remitted back to the First-tier Tribunal, to be decided by a judge other than Judge Fox on a de novo basis under Practice Statement 7.2(b).
31. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 10th March 2017