Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08695/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 22 November 2016
On 8 December 2016

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
MILAD HAMIDI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation

For the Appellant: Mr G Brown instructed by Broudie Jackson and Cantor
For the Respondent: Mr G Harrison Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Appellant, a national of Iran was born on 10 August 1992. The Appellant appealed against the decision of the Secretary of State dated 21 May 2015 to refuse to grant an application for asylum. First-tier Tribunal Judge Wedderspoon and Designated Judge Baird dismissed the appeal and the Appellant now appeals with permission to this Tribunal.
3. The background to this appeal is that the Appellant entered the United Kingdom on 4 December 2014 and claimed to be at risk on return while he was in Iran he was politically active as a supporter of the Kurdistan branch of the Communist Party in Iran called Komala.
4. The Respondent refused the application because they did not accept that he had been detained by the Iranian authorities because of his political activities and they found that his activities with Komala were low level. They did not find he was at risk on return.
5. The First-tier Tribunal Judge heard oral evidence from the Appellant in which he repeated the account that he had given in his interview and additionally stated that he was actively involved with Komala in the UK and had attended demonstrations and meetings promoting his support and activism for Komala which he confirmed with internet activities. There were letters from Ahmad Azizpour of Komal Abroad in support of his claim and from Almas Farzi a branch representative of Komala living in London.
6. The Judges concluded that the Appellant was not a credible witness. They found inconsistencies in his account and concluded that he was not of interest to the Iranian authorities. They found his sur place activities was a cynical effort to bolster his asylum claim.
7. Grounds of Appeal were lodged arguing that the Judges had failed to properly engage with his sur place activities in that they appeared to find his motivation determinative of risk; they failed to make any findings in relation to the twp witnesses from Komala; failed to consider the risk on return as a failed asylum seeker who had exited illegally. Permission was granted
8. At the hearing before me Mr Brown argued that the Judges had failed to deal with the evidence of Mr Azizpour or Mr Farzi other than summarising it. There is no indication of what weight they gave the evidence; He argued that motive was determinative of the weight to be given to sur place activities particularly when that evidence was taken with the evidence of the Komala representatives.
9. Mr Harrison conceded that there had been no proper consideration of the evidence of the representatives of Komala and he accepted that it was not enough to summarise it.
Error of Law
10. The grounds of appeal to the Upper tribunal content that the First-tier Tribunal Judge erred in three respects.
11. It is contended that the Judges failed in their assessment of the Appellants sur place activities both because they appeared to suggest motive was determinative of risk and their finding that the Appellant was not genuine in such activities failed to take account of the evidence of the two representatives of Komala who clearly potentially provided relevant evidence on that issue. I am satisfied that Mr Harrison properly conceded that they made no assessment of the evidence of witnesses who gave evidence that was relevant to the core of the account. I remind myself of what was said in MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC), that (i) It was axiomatic that a determination disclosed clearly the reasons for a tribunal's decision. (ii) If a tribunal found oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it was necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight was unlikely to satisfy the requirement to give reasons. It may well be that the tribunal rejected the evidence of the two Komal representatives but reasons had to be given.
12. Given this goes to the core of the Appellants account risk on return would have to be assessed based on any new factual findings.
13. I therefore found that errors of law have been established and that the Judge's determination cannot stand and must be set aside in its entirety. All matters to be redetermined afresh.
14. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First Tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
15. In this case I have determined that the case should be remitted as I have found there was an error of law going to the core of the Appellants claim. In this case none of the findings of fact are to stand and the matter will be a complete re hearing.
16. I consequently remit the matter back to the First-tier Tribunal sitting at Manchester to be heard on a date to be fixed before me.
CONCLUSION
17. I therefore found that no errors of law have been established and that the Judge's determination should be set aside and the matter remitted for a rehearing in the First-tier Tribunal.

Signed Date 7.12.2016
Deputy Upper Tribunal Judge Birrell