Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10005/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 February 2017
On 14 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

MB
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: Mr T. Plowright, instructed by Perera & Co Solicitors
For the Respondent: Mr J. Parkinson, Home Office Presenting Officer

Anonymity
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) 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 appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS

1. The appellant is a citizen of Tanzania, born on 17 February 1987, whose application for international protection was refused by the respondent on 1 July 2015. The appellant appealed and his appeal was heard by First-tier Tribunal ("FtT") Judge Rahman. In a decision promulgated on 16 September 2016 the judge dismissed the appeal. The appellant now appeals against that decision.

2. The appellant's claim, in summary, is that he faces a risk on return to Tanzania because he is homosexual. The respondent accepted that in most cases the treatment of homosexual men in Tanzania amounts to persecution but did not accept that the appellant is homosexual.

Decision of the First-tier Tribunal

3. The respondent was not represented at the FtT hearing.

4. Judge Rahman identified that the only matter at issue was whether the appellant was homosexual. After considering the evidence, the judge concluded that, applying the lower standard of proof, the appellant's account of being homosexual was not credible and dismissed the appeal.

5. The judge reached this conclusion having summarised the appellant's witness statement (paragraphs [28]-[40]), and the evidence of various witnesses, three of whom gave evidence at hearing, all of whom stated that the appellant is homosexual and gave reasons to explain why they have knowledge of this (paragraphs [42] to [50]).

6. The judge found that the witnesses were all relatives or friends of the appellant and therefore were "not what may be described as independent witnesses" (paragraph [65]).

7. The judge identified a number of what he characterised as discrepancies in the witness evidence. His findings include that:

a. The appellant stated in his asylum interview that his sister asked him to leave her house in 2011, after catching him kissing a man. However, the appellant's sister's witness statement states that this occurred in 2013.

b. The appellant's sister refers to one incident of seeing the appellant with a man whereas her husband's statement refers to this happening many times.

c. The appellant states he is openly gay but he had a six month relationship with a woman whose evidence was that she only found out after some time his sexuality.

d. The appellant has said that he slept with boys at boarding school because there were no girls and out of convenience and that if there was an option he would have slept with girls. The judge considered this to be inconsistent with his claim to be homosexual.

e. The appellant, in his asylum interview, said that he wanted to live freely and be with men and that he did not find women attractive. Yet, he entered into a relationship in the UK with a female, lasting six months. Moreover, this occurred in 2012, which is after he had revealed his sexuality to his family so there was no reason for him to disguise his sexuality.

Grounds of appeal and submissions

8. The first ground of appeal is that the delay in promulgation renders the decision unsafe. The date of the hearing was 9 June 2016 and date of promulgation was 16 September 2016. The date the decision was signed by the judge was 29 August 2016.

9. To support this contention, Mr Plowright relied on RK (Algeria) [2007] EWCA Civ 868. In RK (Algeria) there was a 29 month delay between hearing and promulgation. The Court of Appeal cited with approval from Sambasivam v Secretary of State (2000) Imm AR 85 a statement from Mario (1998) Imm AR 281 at 287 that:

"In an area such as asylum, where evidence requires anxious scrutiny, the Tribunal will usually remit a case to another adjudicator where the period between the hearing and the dictation of the determination is more than 3 months".

10. At the hearing, Mr Plowright acknowledged that the date of dictation, rather than the date of promulgation, is relevant and that in this case the date of dictation was less than three months after the hearing.

11. The second ground of appeal is that the judge gave "undue weight" to the "discrepancies" in the evidence of the appellant and his sister and did not give "sufficient weight" to the evidence of the appellant and his witnesses. The grounds maintain that the discrepancies were minor and did not undermine the central issue that the appellant is gay. The grounds also state that the judge "failed to give adequate weight" to the detail that was supplied by the appellant during his asylum interview.

12. At the hearing, Mr Plowright relied on and expanded upon the grounds of appeal. He argued that although the judge had identified discrepancies, these were minor and all of the witnesses were consistent in saying the appellant was gay. He maintained that the judge did not properly evaluate the witness evidence and in respect of several of the witnesses there is no assessment: the judge has done no more than recount what the witnesses say said then ignore it. Mr Plowright concluded that it was not within the reasonable range of conclusions to find that the appellant is not gay.

13. Mr Parkinson's response was to highlight the discrepancies, as found by the judge, such as that between the appellant's sister and her husband about the number of incidents where the appellant had been caught with a man. He argued that the judge did not need to make findings about every witness and could focus on the key witnesses and issues. There were a variety of credibility issues arising and the judge had dealt with this properly.

Consideration

14. RK (Algeria) indicates that a delay of three months between hearing and dictating a decision may render a decision unsafe. In this case, the decision was signed 2 months and 20 days after the appeal was heard.

15. The decision sets out the evidence that was before the judge comprehensively and accurately. Between paragraphs [28] to [50] there is a detailed summary of the witness evidence, the accuracy of which has not been challenged.

16. Given the detailed description of the evidence in the decision and the duration of the delay (less than 3 months), I am satisfied that passage of time has not affected the judge's credibility assessment and therefore that no error of law arises from the delay in promulgation of the decision.

17. The second ground of appeal concerns the way the judge engaged with the evidence of the appellant and those supporting his claim. In essence, the contention of the appellant is that excessive weight has been attached to minor discrepancies and insufficient weight has been attached to the evidence of supporting witnesses.

18. It is well established that the weight to be given to evidence is ordinarily a matter for the FtT. See, for example, Reid v SSHD [2010] EWCA Civ 138, where it was stated:

43. "?matters of weight are for the first instance court or tribunal. This court will not intervene unless the first instance court or tribunal has attached a degree of weight to factors which it could not reasonably attach, or alternatively the tribunal has attached so little weight to particular factors that it could not properly take that view.

19. It is clear that the judge has considered all of the witness evidence that was before him. Accordingly, it cannot reasonably be argued that material evidence was ignored.

20. The judge identified a number of discrepancies in the evidence of the appellant, his sister and brother in law. He also considered the evidence of the appellant's friends and reached a view on the weight the evidence should be given. These were matters for the judge, who had the benefit of hearing oral evidence from the appellant and several other witnesses.

21. It may be that another judge would have weighed the evidence differently thereby reaching a different conclusion about the appellant's sexuality. However, I am satisfied that the judge has taken into account the material evidence and attached weight to the relevant factors in a way that is not unreasonable. The judge reached a conclusion about whether the appellant is homosexual that was open to him based on the evidence.

Decision
A. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
B. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 13 February 2017