Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08908/2013

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 22nd July 2016
On 5th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

QAM
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Karnik of Counsel, instructed by Latitude Law
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and Background
1. The Appellant appeals against a decision of Judge Lever of the First-tier Tribunal (the FtT) promulgated on 30th September 2015.
2. The Appellant is a male Afghan citizen, born [ ] 1981 making him 34 years of age at the date of the Upper Tribunal hearing.
3. The Appellant arrived in the United Kingdom in May 2012 and claimed asylum.
4. The Respondent refused the application on 1st September 2013 and the Appellant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The appeal was heard on 11th August 2015 and dismissed on all grounds.
5. The Appellant applied for permission to appeal to the Upper Tribunal. The grounds are summarised below;
6. It was contended that it was not in dispute that the Appellant had been a religious educator in Afghanistan and at paragraph 27 the FtT considered it plausible that he may have been approached by the Taliban to indoctrinate students. It is contended that the FtT subsequently erred at paragraph 36 by stating;
"If it could be said that he feared that his profile as a religious teacher potentially placed him at risk because he might be regarded as a useful recruit for extremists or potentially regarded as such by the government then it would be a simple question of him simply finding other employment that did not raise his profile if that was something that concerned him."
7. The Appellant contended that the above line of reasoning is directly in contradiction with the principles in HJ (Iran) [2010] UKSC 31.
8. In addition it was contended that the FtT erred in law at paragraph 34 by finding there was no credibility in the Appellant's argument that he feared the Afghan government due to his previous support for the Taliban, as this was contradicted by further reasoning at paragraph 36 where it was stated;
"he may have had and may still retain attitudes sympathetic or not averse to the Taliban".
9. It was contended that if it was considered credible that the Appellant held such views, the FtT had failed to explain why it was not considered credible and reasonable that the Appellant feared the Afghan government.
10. Permission to appeal was granted by Judge Adio in the following terms;
"Although the judge did not find the Appellant credible in certain aspects of his claim the judge did make a positive finding of the Appellant's credibility that the Appellant may well have followed in his father's footsteps to be a religious educator/teacher. It is therefore an error of law to deny refugee status on the ground that it would be open to the Appellant on relocation to seek to engage in employment other than as a religious teacher. The conclusion at paragraph 36 of the judge's decision creates that impression and it is for that reason alone that I am granting permission to appeal. The grounds for permission to appeal are arguable."
11. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008. In summary it was contended that the FtT directed itself appropriately. The FtT made findings that the Appellant's profile would not generate any adverse interest, and therefore the comment as to changing employment was not material.
12. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision should be set aside by reason of error of law.
Oral Submissions
13. Mr Karnik relied and expanded upon the grounds contained within the application for permission to appeal. Mr Karnik confirmed that there was no application to admit evidence that had not been before the FtT when error of law was being considered.
14. Mr Karnik submitted that the FtT finding at paragraph 36 clearly conflicted with the guidance given in HJ (Iran) and infected the other findings made, which meant that the decision was unsafe and must be set aside.
15. Mr Karnik anticipated that it might be argued on behalf of the Respondent, that although the FtT had erred, the error was not material and in anticipation of such an argument, referred to paragraph 49 of AJ (Angola) [2014] EWCA Civ 1636. In that paragraph the Court of Appeal stated that there were two categories of error that may not be material. One was that any rational Tribunal must have reached the same conclusion notwithstanding the error, and the second was if there was a failure to refer to a relevant legal instrument, but the Tribunal had in fact applied the test that it was supposed to apply. I was asked to find that the error in this appeal did not fall within either of those categories.
16. As anticipated by Mr Karnik, Mr McVeety accepted that the FtT had erred by stating that if the Appellant feared his profile as a religious teacher placed him at risk, then it was open to him to find other employment, but argued that this was not a material error.
17. Mr McVeety argued that the finding at paragraph 36 was an alternative finding, and the FtT had already rejected the Appellant's contention that his profile as a religious teacher put him at risk, and I was referred to the findings made at paragraphs 28-34 inclusive.
18. I was asked to accept that the FtT had not found the Appellant's account to be credible, and had rejected that account, and those findings should stand as they had not been challenged in the application for permission to appeal.
19. In response Mr Karnik argued that the starting point of the FtT was incorrect, as the FtT should have started consideration of the Appellant's account with the HJ (Iran) principles. If this approach had been adopted, then the FtT may not have made the adverse credibility findings.

My Conclusions and Reasons
20. As conceded by the Respondent, the FtT erred in law at paragraph 36 in stating that it was open to the Appellant to cease religious teaching if that placed him at risk. The error was not to consider the principles in HJ (Iran) which are summarised in paragraph 82 of that decision.
21. The issue to be decided is whether the error of law is material. I conclude that the error is not material for the following reasons.
22. I am satisfied that the finding in paragraph 36 which is the subject of challenge, is an alternative finding. I note that the FtT commences the finding by using the word 'if'.
23. The decision must be read as a whole, and such a reading discloses that prior to paragraph 36 the FtT had already made primary findings that the Appellant would not be at risk, and sustainable reasons for those findings were given.
24. At paragraph 27 the FtT found that there was no suggestion that the Appellant encountered any difficulties on leaving the Taliban, and found it "not implausible that as Koran teachers in a madrassa the Appellant and his father may have been seen as sympathetic candidates to indoctrinate students."
25. However the FtT found that it was difficult to know what extremist views the Taliban wished the Appellant and his father to indoctrinate the students with, as they may already have held views sympathetic to the Taliban. The FtT found that if the Appellant and his father refused to indoctrinate students, "there would be little gained by threatening or killing such individuals. Pertinently neither the Appellant nor his father chose to relocate following such a visit in 2001."
26. At paragraph 28 the FtT does not accept that an attack in 2002 was carried out by the Taliban.
27. At paragraph 30 the FtT finds that the Appellant was in Pakistan between 2002 and 2008. At paragraph 31 the FtT finds that the Appellant moved to France for "economic betterment rather than any fear of persecution either in Afghanistan or Pakistan."
28. At paragraph 32 the FtT finds that the Appellant remained in Afghanistan from 2008 to 2012 and that he returned to his own village in Helmand Province which demonstrates no real fear of the Taliban. The FtT also finds that this demonstrates that whether or not any incidents occurred in 2001/2002, there were no incidents involving the Appellant or his family for the four year period that he remained in Helmand Province.
29. At paragraph 33 the FtT makes a finding that the Appellant's claim that his father was killed by the Taliban is not credible. A further finding is made that if the Taliban wished to kill the Appellant, they clearly had the opportunity to do so but had not made any attempt on his life.
30. At paragraph 34 the FtT finds the Appellant's claim to fear the Afghan government because of alleged involvement with the Taliban some fourteen years previously to be incredible. The FtT accepts that the Appellant may have been a supporter or sympathiser of Taliban views, but finds that the Taliban have no adverse interest in him. There is a further finding that the Taliban had ample opportunity to have killed the Appellant while he was living in his village in Helmand Province, and made no attempt to do so.
31. At paragraph 35 the FtT finds the Appellant to be "an opportunist who has sought to enter France for economic betterment, was refused and now seeks to do the same in the UK, hopeful of better results."
32. At paragraph 36, prior to the finding which is challenged, the FtT finds that the Appellant has a reasonable internal relocation option to Kabul, and repeats the conclusion that neither the government nor the Taliban would have any adverse interest in him.
33. For the reasons given above, I conclude that the FtT, with the exception of the finding under challenge, made findings open to it on the evidence and provided adequate and sustainable reasons for those findings. The finding under challenge is an alternative finding, and is wrong in law, but for the reasons previously given, the error is not material as it is an alternative finding.
Notice of Decision
The making of the decision of the FtT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeal is dismissed.
Anonymity
It is unclear whether an anonymity direction was made by the FtT. As this is an appeal against refusal of international protection, I have decided to make an anonymity direction pursuant to rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008. Unless and until a Tribunal or court directs otherwise, the Appellant is 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 26th July 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. There is no fee award.

Signed Date 26th July 2016

Deputy Upper Tribunal Judge M A Hall