Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09528/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 23 February 2017
On 8 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

m r
(anonymity directioN MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Martin, Counsel, instructed by IAS Birmingham.
For the Respondent: Ms A Alboni, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Asjad (the judge), promulgated on 5 July 2016, in which she dismissed the Appellant’s appeal. That appeal was against the Respondent’s decision of 12 June 2015, rejecting the Appellant’s protection and human rights claims.
2. The Appellant is an Afghan national, born on 12 December 1997. His case was based upon his Hazara ethnicity and, in particular and importantly, four attacks against him which he asserted were perpetrated by the Shora-e-Nizar group.

The judge’s decision
3. There was no dispute about the Appellant’s ethnicity, and the judge accepted this fact. Following the decision in MI (Hazara - Ismaili – associate of Nadiri family) Afghanistan CG [2009] UKAIT 00035, the judge concluded that there was no risk on return on the basis of ethnicity and/or association with the Nadiri family alone (paragraph 32).
4. The judge accepted, as did the Respondent, that the Appellant had in fact been attacked on four occasions. However, an important question for the judge was whether these attacks emanated from the Shore-e-Nizar group. The Respondent had concluded that they were not (paragraph 33, and see the reasons for refusal letter). Ultimately, the judge too found that the Appellant’s account on this core issue was not credible. In paragraph 34 it is noted that an uncle of the Appellant, who might have had material evidence to provide and who attended the hearing, was not called to give oral evidence. The judge therefore proceeded to assess the Appellant’s account in light of the latter’s evidence. This was found to be wanting because it was based upon hearsay and speculation, and was at odds with the country information on how the leader of the Shore-e-Nizar group was killed (paragraph 35).
5. In light of this, the core element of the Appellant’s account was rejected and the judge concluded that there was no risk on return. The Article 8 claim was briefly considered and dismissed.

The grounds of appeal and grant of permission
6. The grounds are brief and narrow. They assert that the judge failed to make findings on the issue of the four attacks. As a consequence of this, it is said that the issue of risk on return was not adequately considered.
7. In granting permission, First-tier Tribunal Judge Keane saw merit in the grounds and in paragraph 5 expanded on these grounds somewhat. He comments on what he deemed to be inadequate reasons given by the judge for the core conclusions and a concern over the treatment of the uncle’s failure to give oral evidence.

The hearing before me
8. Mr Martin relied on the grounds. He submitted that there was no detail on why the judge rejected the Appellant’s account of why he was attacked. He further submitted that the judge held the lack of the uncle’s evidence against the Appellant. What is said in paragraph 35 is insufficient to justify the rejection of the Appellant’s account. Mr Martin accepted that if the judge’s conclusion on the Appellant’s credibility was sound, there was no risk on return based solely upon either the four attacks and/or his Hazara ethnicity.
9. Ms Alboni relied on the rule 24 response and submitted that adequate reasons were provided. The issue of the uncle was one amongst others. The judge was entitled to prefer the country information over the speculative evidence of the Appellant.
10. There was no reply from Mr Martin.

Decision on error of law
11. As I announced to the parties at the hearing, I conclude that there are no material errors of law in the judge’s decision. My reasons for this are as follows.
12. First, the judge was entitled to have in mind the fact that the uncle did not give oral evidence. This was after all a potentially material source of evidence. Having said that, it would have been of concern if the judge had placed undue weight upon this matter. In my view, this was not the case here. On a fair reading of paragraphs 34 and 35, the judge has in truth simply noted that as a matter of fact there was no evidence from the uncle, and that he was left to assess the Appellant’s claim on the evidence that was before him. The judge has not implicitly required corroboration from the Appellant.
13. Second, the evidence before the judge consisted of the Appellant’s account and the country information. He was entitled to view the Appellant’s evidence as being hearsay and speculative. This does not of itself mean that it had to be rejected. However, the judge was fully entitled to conclude that it was “wholly inconsistent” with the clear country information on how the leader of Shore-e-Nizar was killed. Based on these considerations, it was open to the judge to conclude that the Appellant’s specific account of why he was attacked was not truthful. The judge’s reasoning, whilst brief, adequately addressed the core issue in the appeal.
14. Third, no other material matters were left out of account by the judge or otherwise inadequately considered.
15. The Appellant’s appeal to the Upper Tribunal must fail and the decision of the First-tier Tribunal stands.

Anonymity
16. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. This direction has been made in order to protect the Appellant from serious harm, having regard to the interests of justice and the principle of proportionality.

Decision

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

The decision of the First-tier Tribunal stands.

Signed Date: 5 March 2017

H B Norton-Taylor
Deputy Judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date: 5 March 2017

Judge H B Norton-Taylor
Deputy Judge of the Upper Tribunal