Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aA/08384/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 November 2016
On 06 December 2016

Before

UPPER TRIBUNAL JUDGE blum

Between

AH
(anonymity direction MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Eaton, Counsel, instructed by Lawrence Lupin Solicitors
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Mr AH (Appellant) appeals against the decision of Judge of the First-tier Tribunal S J Pacey, promulgated on 31 May 2016, dismissing his protection and human rights appeal against the Respondent's decision of 14 May 2015 refusing his protection and human rights claims.

Background

2. The Appellant is a national of Iran, date of birth 02 July 1978. He claims to have left Iran around September 2013 and arrived in the United Kingdom on 3 October 2013. He claimed asylum the following day.

3. The basis of the Appellant's asylum claim is twofold. Firstly, the Appellant fears persecution on account of having reported members of the Basij to the authorities in respect of a rape and sexual assault allegation dating back to the summer of 2006. The Appellant maintains that he and a friend were kidnapped by Basij members, threatened, beaten up, raped and then released. The matter was reported to the police and in July 2006 the Basij members were convicted of kidnapping, extortion, and forging a government officer's title. They were acquitted of the rape allegation. Sometime after the convictions the Appellant discovered that one of the men was not serving his sentence and the family of this man threatened the Appellant's family as they wanted him to drop the charges. In June 2012 individuals came to the Appellant's home, attacked him and his friend and damaged the house. In November 2012 he was dismissed without explanation from his university.

4. The 2nd basis of the asylum claim related to the Appellant's claimed conversion to Christianity following his entry into the UK.

5. As a result of a number of inconsistencies in the Appellant's account the Respondent did not find him credible. The Respondent did not believe that the Appellant had converted to Christianity because he demonstrated little knowledge of the Christian faith.

The First-tier Tribunal hearing

6. The First-tier Tribunal heard evidence from the Appellant. The judge had before her an Appellant's bundle divided into 3 sections. The 2nd and 3rd sections contained, respectively, background evidence and case law. The 1st section was headed 'subjective evidence'. This contained, inter alia, a number of translations and medical certificates (in English) said to have been issued by doctors in Iran.

7. The judge did not believe the Appellant's account of events in Iran. The judge did not find it credible that the Appellant was unable to recall when he made his complaint to the authorities and when he discovered that one of the men was not serving his sentence, and drew adverse inferences based on inconsistent evidence relating to these events. The judge referred to contrasting answers given by the Appellant relating to the frequency of threats and whether any threats were made directly to him. There were said to be inconsistencies between the Appellant's account and some of the court documents he provided that were translated. The judge referred to inconsistent evidence relating to the attack on the Appellant's house and the manner in which his friend was attacked. The judge additionally relied on inconsistent evidence from the Appellant in respect of whether he had ever been issued his own passport. The judge drew an adverse inference from the absence of any evidence from the Appellant's father and because he had been able to leave Iran without problems.

8. At [16] the judge referred to a medical letter and a copy of an 'exemption from military service' document that were in the Respondent's bundle. The judge noted that these documents were not translated, and that other documents relating to the Appellant's medical treatment in Iran will also not translated. The judge stated that these documents therefore commanded no probative value.

9. At [21] the judge referred to a letter confirming the Appellant's dismissal from University contained in the Respondent's bundle but attached no weight to it because it was not translated. The judge noted an inconsistency in the Appellant's evidence as to who issued this letter.

10. The judge did not accept the Appellant's explanation for his lack of knowledge of basic tenets of the Christian faith. The judge drew an adverse inference based on the timing of the Appellant's attendance at the Oasis Church. The judge noted the absence of any church representative at the hearing. The judge drew an additional adverse inference from the Appellant's claim that he was effectively engaged in street evangelising given his poor proficiency in English.

11. The judge considered a psychiatric report which indicated that the Appellant manifested features indicative of an anxiety disorder but, in light of her other adverse credibility findings, the judge was not satisfied that the Appellant's anxiety disorder was caused by his version of events. Having found that the Appellant fabricated his account, had left Iran legally, and was not a genuine Christian convert, the judge concluded that the Appellant did not face a real risk of persecution or a breach of Article 3 ill-treatment and dismissed his appeal.

The grounds of appeal and the grant of permission

12. The grounds contended that the judge failed to take account of material evidence before her. It was submitted that, contrary to the judge's assertions at [16] and [21], there were in fact translations of the University document and medical documents contained in the Appellant's bundle. The judge made no reference to these translations. In so doing the judge failed to take into account relevant evidence and misdirected herself as to the availability of translated documents. It was further submitted that the judge failed to take into account other medical evidence contained in the Appellant's bundle and supportive of his account of being raped. This evidence was said to be material because it was capable of going some way to explain the inconsistencies in the Appellant's evidence.

13. The grounds additionally contended that the judge was not entitled to drawn adverse inferences from the absence of any church representative at the hearing, particularly since a letter in support had been provided. It was submitted that the judge failed to refer to evidence indicating the Appellant had attended a church in London prior to being transferred to Birmingham. Nor did the judge consider that the Appellant, when handing out leaflets on streets, was accompanied by an interpreter.

14. The grounds finally contended that the judge misdirected herself in respect of any risk faced by the Appellant as an undocumented failed asylum seeker being returned to Iran.

15. In granting permission judge of the first-tier Tribunal Osborne stated,

"In an otherwise careful and well-reasoned decision it is nonetheless arguable that in relation to the translations, the judge gave no probative value to documentary evidence of which there were translations which could and should have been considered. It is at least arguable that the judge failed to consider the translations and therefore failed to properly consider all of the evidence."

Submissions at the error of law hearing

16. Mr Eaton did not pursue the ground relating to illegal exit/undocumented returns. I say no more about that. Mr Eaton submitted that the judge was factually mistaken in concluding that there were no translations of the University letter or the medical documents emanating from Iran. He drew my attention to the translations contained at A53 and A54 of the Appellant's bundle. He submitted that the documents at A70 and A71 were not considered at all. The document at A71 was a letter purportedly written by Dr Mehdi Hosseini indicating that the Appellant had been under his supervision as a result of PTSD caused by sexual trauma. Nor had the judge considered the University letter translation at A60. It was submitted that the Appellant had been attending a church in London and that he found it more difficult to find a suitable church in Birmingham. The judge therefore failed to consider that the Appellant was in fact a regular church attending in London.

17. Ms Isherwood submitted that there was no material error of law. The judge produced a well-reasoned determination and relied on a wide range of reasons to support her adverse credibility conclusions. There were two similar translations of medical certificates issued by Dr Seyed Nasab, the 1st [A53] dated 29 October 2012 which indicated that the Appellant received treatment for an anxiety disorder from 28 October 2010 to 3 April 2011, the 2nd [A54] dated 7 October 2013 indicating that the Appellant received treatment from 27 December 2010 to 3 April 2013. An untranslated letter from Dr Nasab [A71], written in English, confirmed the details in the 1st certificate. It was submitted that the University letter [A60] was vague, did not clearly indicate whether the Appellant had in fact been expelled, and did not support his claim. The letter at [A70] was under dated and was written in English.

Discussion

18. Ms Isherwood did not dispute that the judge made no reference to the translated University letter or the translated medical certificates. Nor was it in dispute that the judge made no reference to the letter, written in English, from Dr Hosseini. It was the Respondent's contention that any such failure by the judge could not have made any material difference to her assessment of the Appellant's credibility and, consequently, to her assessment as to whether the Appellant faced a real risk of persecution.

19. I acknowledge Ms Isherwood's observations of the translations of the medical certificates. The certificates are very brief in nature, indicating only that the Appellant was being treated for an anxiety disorder, and there were differences in respect of the period of his treatment. The letters do however provide some support for the Appellant's claim to have been receiving psychiatric treatment prior to coming to the UK.

20. The letter at A70 was undated and there was no explanation as to how it was obtained, when it was obtained, or why it was in English. It does not however appear that the Appellant was ever asked to provide an explanation in respect of these points. The letter indicated that its author, D Mehdi Hosseini, a psychiatrist, was supervising the Appellant "? Because of PTSD disorders resulted from sexual trauma." Once again, although this letter is brief in nature it is capable of providing support for the Appellant's account of being raped.

21. At [21] the judge attaches no weight to the Appellant's account of being dismissed from University because, according to the judge, there was no translation of the letter contained in the Respondent's bundle. Although there was no translation in the Respondent's bundle, the Appellant's bundle did contain a translation at A60. This translation named the Appellant, gave his student number and indicated that he was studying architecture. There is no date under the heading 'date of breakdown relation', and all that appears under the heading 'reason of the breakdown relation' is "determined/transfer/expelled". The letter contains other details relating to the University. It is not clear from the letter who issued it or which university department/office they belonged to. Nor is the exact reason for the 'breakdown relation' clear. This letter does however indicate that the Appellant was a university student and that he left university, and that one of the reasons for his leaving may have been that he was expelled. It does therefore provide some corroboration for aspects of the Appellant's claim.

22. I am satisfied that the judge failed to take account of material evidence that was before her. Ms Isherwood submits that any such failure is not material given the judge's other adverse credibility findings and the factors identified by Ms Isherwood which undermined the reliability of the unconsidered documents. Although the judge may ultimately have reached the same conclusion had she taken account of all the evidence before her, I am not satisfied that she inevitably would have reached that conclusion. If the judge had considered the documents contained in the Appellant's bundle, and found them reliable, this may have reduced the weight she attached to the various inconsistencies in the Appellant's evidence. Given the need to consider asylum claims with anxious scrutiny I am not satisfied that the judge's error of law is immaterial.

23. In the circumstances I am satisfied that the decision is unsafe. Given that the judge's error related to issues of credibility it is appropriate to remit the matter back to the First-tier Tribunal, for a fresh hearing, all issues open.

Notice of Decision

The First-tier Tribunal decision is vitiated by a material error of law.
The matter will be remitted to the First-tier Tribunal to be heard by a judge other than Judge of the First-tier Tribunal S J Pacey.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Blum 06 December 2016