Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09926/2014

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 9 March 2017
On 29 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

K D
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T D H Hodson of Elder Rahimi Solicitors
For the Respondent: Mrs H Aboni, Home Office Presenting Officer

DECISION AND REASONS

1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
2. The appellant who is a citizen of Iran who was born on 24 June 1994. He arrived in the United Kingdom on 19 July 2014 and claimed asylum. That application was refused on 28 October 2014 and a decision made to remove him to Iran. The appellant appealed against that decision to the First-tier Tribunal. His appeal was dismissed on all grounds in a determination promulgated on 7 January 2015. The appellant then successfully appealed to the Upper Tribunal which in a decision dated 28 September 2015 remitted the appeal to the First-tier Tribunal for a de novo rehearing.
3. The remitted appeal was heard by Judge Andrew on 31 August 2016. In a determination sent on 12 September 2016, Judge Andrew dismissed the appellant’s appeal on all grounds.
4. The appellant sought permission to appeal to the Upper Tribunal. Permission was initially refused by the First-tier Tribunal but on 22 December 2016 the Upper Tribunal (UTJ Bruce) granted the appellant permission to appeal. Thus, the appeal came before me.
The Judge’s Decision
5. The appellant claims that he is at risk on return to Iran on the basis that he worked as a sound engineer for a company which provided sound equipment for venues used by the Iranian government for meetings and conferences. During one of those occasions, the Appellant claims that he overheard discussion between the Iranian President and other high ranking officials when they talked about people changing their religion and the rape of 9-year-old girls for adultery and if the public found out about such matters the government would lose control. The Appellant also claims that he heard reference to an article written by an individual “AD” whose material he subsequently found on the internet that was critical of the Iranian regime. The appellant claims that he listened for “probably two to three minutes” before turning off the sound equipment through which he heard the discussion. He told one of his work colleagues what he had heard.
6. Subsequently, the appellant claims that he was stopped, searched and detained by the Sepah at a road block. He had a walkie talkie in his car which was not permitted under Iranian law. The appellant’s case is that this belonged to his employer and he was taking it home in order to charge it. The appellant was taken to a building where he was left in a locked room but managed to escape through the window. He subsequently left Iran and claimed asylum.
7. Judge Andrew rejected the appellant’s claim and did not accept that he had been arrested and detained as he claimed. She accepted that he worked as a sound engineer but that he would not be at risk on return on that basis or as a failed asylum seeker applying SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC). As a result, the judge dismissed the appellant’s appeal on all grounds.
The Submissions
8. The appellant relies upon three grounds of appeal which were expanded upon by Mr Hodson, on the appellant’s behalf in his oral submissions. Grounds 1 and 2 challenge the judge’s adverse credibility finding. Ground 3 challenges the judge’s finding that the appellant was not at risk on return based upon, in particular, his accepted work in a politically sensitive area. I will turn to their detail below.
9. Mrs Aboni, on behalf of the respondent submitted that the judge’s adverse credibility finding was sound. The judge had properly directed herself, considered all the evidence (oral and in the bundles) and had made sustainable findings rejecting his account of being arrested and detained. The appellant had no political profile and was not, as a result, at risk on return to Iran following SSH and HR.
Discussion
10. I deal first with ground 1.
11. Mr Hodson challenged the judge’s reasoning in paras 19, 20, 21 and 24 leading to her adverse credibility finding.
12. In para 19, the judge doubted the appellant’s credibility on the following basis:
“19. The Appellant goes on at question 102 to say that he listened for ‘probably two to three minutes’. I do not find the claims of the Appellant to be credible. It is not reasonably likely that within a period of two to three minutes the officials would have been able to discuss all the matter to which the Appellant refers.”
13. Mr Hodson submitted that it was not implausible, as the judge reasoned, that in a period of “two to three minutes” the appellant could not have heard what he claimed. Mr Hodson referred me to the appellant’s evidence at para 16 of his first witness statement dated 11 December 2014 (at P14 of the bundle). There the appellant said this:
“… I listened for two or three minutes. In that time Ayatollah Golpayegani and President Rouhani were speaking – debating between each other. In particular, Mr Rouhani was giving ‘examples’ of persons changing their religion, the raping of under-age girls by Mullahs and the writings of [AD]. He said these are the kind of things that make problems for Iran, ‘our country’. Mr Golpayeghani said we must keep these things under control and make sure fewer people know about them. At this point I stopped listening and switched off the mic-speaker; it concerned me that I had heard about matters which a senior member of the government was saying should be kept from people in general.”
14. The plausibility of an individual’s account may be relevant in assessing the veracity of that account. I summarised the proper approach in my decision in an earlier unreported Upper Tribunal decision (PA/00018/2016) at paras 24-26 which it is convenient to reproduce here:
“24. It is not necessarily impermissible for a judge to rely in his or her reasoning on an aspect of an appellant’s account as being implausible. Mr Lane acknowledged that. In Y v SSHD [2006] EWCA Civ 1223, having cited HK, Keene LJ (with whom Ward and Carnwath LJJ agreed) accepted this (at [26]):
‘None of this, however, means that [a judge] is required to take at face value an account of facts proffered by an appellant, no matter how contrary to common sense and experience of human behaviour the account may be. The decision maker is not expected to suspend his own judgment, nor does Mr Singh contend that he should. In appropriate cases, he is entitled to find that an account of events is so far-fetched and contrary to reason as to be incapable of belief.’
25. But, there are dangers in doing so as was recognised by the Court of Appeal in HK particularly where a particular cultural context (with which a judge may not be familiar) is not taken into account. In Y, having considered HK, Keene LJ identified the dangers (at [27]):
‘A decision maker is entitled to regard an account as incredible by such standards, but he must take care not to do so merely because it would not seem reasonable if it had happened in this country. In essence, he must look through the spectacles provided by the information he has about conditions in the country in question.’
26. Where a judge has recourse to reasoning which, expressly or implicitly, doubts the plausibility or possibility of the events occurring as in individual claims, in the absence of other evidence such as documents to substantiate that reasoning, the judge runs the risk that his or her conclusion is simply speculation or a purported commonsense conclusion which does not stand up to objective scrutiny. But, as Mr Lane acknowledged, the implausibility of an individual’s account may form part of the reasoning leading a judge to reject the appellant’s account as true. A judge must always bear in mind that sometimes the implausible happens. The more features of an appellant’s account that are implausible, the more likely it is that the appellant’s account cannot stand up to scrutiny as true.”
15. The appellant’s evidence in this appeal was clear: he heard discussion of “examples” and reference to the writer AD in a two to three minute period. In para 29, the judge appears to have understood the appellant’s evidence, in effect, as being that a full discussion of a range of stated issues occurred in this period. That was not the appellant’s evidence. What the appellant said had occurred was not implausible in the sense that as a matter of commonsense (or by reference to objective material) it was unlikely or very unlikely to have occurred. I accept Mr Hodson’s submission that the judge’s reasoning in para 19 is not sustainable.
16. Mr Hodson also criticised the reasoning of the judge in para 20 in doubting that the appellant would disclose what had happened to a work colleague. At para 20 the judge said this:
“20. The Appellant then claims that after the meeting he told one of his work colleagues about what he had done and what he had heard. He claims that his colleague told him ‘what you have heard could be detrimental and quite risky for you and your life is going to fall into danger; be careful’. (Question 110 AIR) In evidence the Appellant told me that he saw this colleague only at work and that he was not a friend outside work. He had known him for about four years. He went on to tell me that he had told the colleague ‘because I was immature’. I do not find the claims of the Appellant in this regard to be credible ones. The Appellant was aware that he had heard sensitive information. Although he says he was immature he had been working in his role for a number of years: it is reasonably likely he would be aware of what would cause concern to the authorities if he repeated information he had heard. Further, the person who he claims he spoke to was nothing more than an acquaintance. The Appellant would, in such circumstances, be unaware of what his views would be about matters the Appellant claims he had heard and thus I am satisfied it is not reasonably likely the Appellant would have risked telling him such information.”
17. Mr Hodson submitted that the judge’s reasoning fails to take into account that the appellant had known the work colleague for four years and that, not only on this occasion but previously, the colleague had given the appellant a lift to and from work (see para 18 of the appellant’s first witness statement at P25 of the bundle).
18. Whilst the judge did refer to the appellant’s evidence that he had known the colleague for “about four years”, and the appellant’s claim that he was “immature”, the judge made no reference to the appellant’s evidence of his contact with the individual in concluding that he was “nothing more than an acquaintance” and that he would be “unaware of what [that individual’s] views would be” and so unlikely to risk telling him such information. The latter is speculation and I have considerable doubt whether the conclusion properly and rationally follows from the premises in any event. This error adds to the cumulative effect of the points raised in ground 1 that the judge’s adverse finding is unsustainable.
19. Mr Hodson also contended that the judge’s reasoning in para 21 was pure speculation that the appellant would send out to his friends downloaded information concerning AD when he had only read the titles. Mr Hodson submitted that the appellant’s evidence, set out at para 19 of his first witness statement (at P25) was not that he simply read the titles but that he had read “some of what seemed the more interesting parts.” Paragraph 21 is as follows:
“21. The Appellant then claims that he went home and researched AD. In doing so he downloaded information which he claims he gave to friends. However, at this stage, as the Appellant told me in evidence he had not read the whole work of AD, only the titles. It is simply not credible that the Appellant would distribute such information without knowing what was actually in it. Further, it would not seem that this has placed the Appellant at any risk as he told me in evidence he remains in contact with the friends to whom he distributed the information and that they are all in Iran.”
20. I accept Mr Hodson’s submission that the judge’s reasoning in para 21 is flawed. Her conclusion that the appellant’s conduct was implausible was based upon a false premise, namely that he only read the titles.
21. Mr Hodson also criticised the judge’s reasoning in para 24 that it was not credible that the appellant, if arrested and detained whether because of what he had overheard or because he was carrying a walkie talkie, would have resulted in him being locked in a room without a guard and with a means of escape. Mr Hodson submitted that the background information, set out at para 34 of the refusal letter, went no further than stating that: “2-band walkie talkies are reportedly banned in Iran”. Mr Hodson submitted that there was no background evidence that this ban was based upon the perception that their possession was, in the judge’s words, “a danger to the regime”. Mr Hodson referred me to an Al-Jazeera news report at page F9 of the respondent’s bundle.
22. Mr Hodson linked this submission with ground 2. Mr Hodson submitted that the judge had failed properly to make any finding whether the appellant’s claimed arrest had been because he was carrying a walkie talkie rather than, as he had first assumed, because it had been discovered that he had overheard the conversation. Mr Hodson submitted that the appellant had accepted in his evidence at para 18 of his second witness statement dated 6 November 2015 (at P7 of the bundle) that he may have been wrong in his assumption: he may have been stopped at the road block as part of a random operation. Mr Hodson submitted that making a finding on that issue was relevant to the appellant’s claim that he was at risk even if he had not been stopped on the basis that it had been discovered he overheard the conversation. Mr Hodson submitted that the judge failed to make a proper finding in that regard simply stating in paras 25-26 that she had already found the appellant’s claim to be detained not to be credible.
23. In my judgment, Mr Hodson has made good both points. First, the judge failed to give adequate reasons, based upon the material to which she was referred, for concluding that it was implausible that the appellant would be detained in the way he claimed if he was randomly stopped and arrested for possessing a walkie talkie. The background material at least provided a credible explanation of why he was not, as the judge concluded he was not, detained in a manner appropriate for someone perceived to be a “danger to the regime”. Secondly, the judge failed to make a proper finding as to whether the ‘alternative scenario’ put forward by the appellant in para 18 of his witness statement was established, namely that he had been detained randomly. It offered a possible explanation for his detention and the manner of that detention and, if established, was a relevant factor in assessing the risk to the appellant having regard to all the circumstances including the nature of his work. The judge did not consider the explanation as relevant to the veracity of his claim. At best, the judge considered and rejected it having already found him not to be credible. That was an error of approach in assessing the totality of the evidence.
24. For these reasons, therefore, I accept that grounds 1 and 2 establish an error of law such that the judge’s adverse factual findings (including her adverse credibility finding) are unsustainable in law.
25. Turning now to Ground 3, as the judge’s factual findings cannot stand, the decision of whether the appellant would be at risk on return to Iran must be remade including any risk in the light of SH and HR. I do not accept the respondent’s submission that the appellant cannot succeed. The risk on return can only be properly assessed once sustainable factual findings have been made in respect of the appellant’s account, including whether and, if so, on what basis, he was arrested and detained by the Sepah.
26. Both representatives accepted that if the appellant made good his grounds of appeal, the proper disposal of the appeal was that it be remitted for a rehearing de novo.
Decision
27. The decision of the First-tier Tribunal to dismiss the appellant’s appeal on asylum and humanitarian protection grounds and under Arts 2 and 3 of the ECHR involved the making of a material error of law. That decision cannot stand and is set aside.
28. It was accepted before me that the inevitable outcome of a successful appeal to the Upper Tribunal was that the appeal must be again remitted for a fresh decision. It is regrettable that the appeal must again be heard afresh by a new judge. However, I accept that given the nature and extent of the fact finding required, the proper disposal of this appeal is that it be remitted to the First-tier Tribunal for a de novo rehearing before a judge other than Judge Andrew and Judge Kershaw.

Signed

A Grubb
Judge of the Upper Tribunal

Date 27 March 2017