Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10261/2015

THE IMMIGRATION ACTS

At North Shields
Decision and Reasons Promulgated
on 20th October 2016
on 28th November 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

H.Z.
(ANONYMITY DIRECTION MADE)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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 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.

Representation:
For the Appellant: Mrs M. Cleghorn, Counsel, instructed by Halliday Reeves Law Firm.
For the Respondent: Mrs R. Petersen, Home Office Presenting Officer.

DECISION AND REASONS
Introduction
1. The appellant is a national of Lebanon. He came to the United Kingdom with his wife and their two children, now aged 5 and 6, in December 2014. They gained entry with valid visit visas. A week later they claimed protection.
2. He claimed that he was at risk on return from various factions within the country for imputed political opinions. Whilst not a supporter of Hezbollah he was required to work for them in a security capacity. They wanted him to go to Syria to fight and he said he could not because of his family commitments. He recounted an incident in February 2013 when a car bomb detonated as he was collecting his child. He was questioned by Hezbollah about his presence. In May 2013 he and his wife were attacked. He believes the group that attacked them oppose Hezbollah and were antagonistic towards the appellant and his wife because they are Shia Muslims. In June 2013 his wife's cousin had been killed by Hezbollah after protesting against their activities. In January 2014 he was in the vicinity of another car bomb and was subsequently questioned by Hezbollah about his presence at the scene. He was detained and tortured for several days and then released. He and his family decided to leave the country. Hezbollah has since been enquiring about them.
3. His claim was refused in July 2015 on credibility grounds.
4. His appeal was heard by First-tier Tribunal Judge Cope in July 2016 and dismissed. The judge did not find the account credible.
5. Permission to appeal to the Upper Tribunal was granted in relation to the judge's assessment of credibility. It was suggested that the judge made comments about the Lebanese postal system which went beyond judicial knowledge. It was also suggested that the judge dismissed the appeal on the basis of inherent implausibility rather than credibility.
The First tier Tribunal decision
6. The decision of First-tier Tribunal Judge Cope runs to 137 paragraphs and comments on detailed aspects of the claim.
7. At paragraphs 19 to 23 of the decision Judge Cope referred to general consistency with the country information and the appellant's account and that of his wife. The appellant gave an account at his initial screening; in the subsequent letter from his representatives; in his substantive interview; in his statement; in responses to the refusal letter; and his oral evidence. His wife gave her account at screening; in her statement; and in her oral evidence. The judge went on to state this consistency was a factor in the appellant's favour but there could be other adverse explanations.
8. The judge referred to the general situation in Lebanon as unstable, with violence associated with politics and terrorist incidents. Hezbollah coexisted with the Lebanese authorities. There were conflicts occurring between various groups including Palestinians; fundamentalists and difficulties connected with relations with Israel and Syria. Into this there was interreligious conflict.
9. The judge commented that the account given by the appellant in oral evidence was at times confusing .It was difficult to comprehend at times the point he was trying to make. The judge found it difficult to obtain clear and consistent answers to straightforward questions relating to his claim. The judge set out examples.
10. At question 33 of the appellant's interview he said he started with Hezbollah in 2009 and provided security in the area he lived. He said he did not carry a weapon nor did he receive any training. He would work 6 days a week from 8 PM until 2 AM. This continued until 2012. Elsewhere in the interview, notably at question 144, reference was made to a letter from his representatives to the effect that he worked for Hezbollah from 2009 until he left Lebanon. The judge found the appellant's response confusing but concluded he was saying his duties changed after May 2012. At question 155 he said he was not working for the organisation. Then he said he only worked one day a week. In a written response he said he stopped work in 2012 and returned his weapon but between then and 2014 he continued to do some security duties at a checkpoint. He said he stopped in December 2014 when he left the country. However, in his statement at paragraph 9 he said after being released by Hezbollah in January 2014 he went into hiding until he left Lebanon.
11. The judge referred to inconsistencies as to whether or not he was armed. At question 36 to 49 of his interview he said he did not carry a weapon. However, at paragraph 4 of a written response he referred to handing in his weapon. In cross-examination he said that before 2012 he carried a weapon but not afterwards.
12. There was inconsistency as to whether he received any training. At question 50 of his interview he said not. In his oral evidence he said he had seven days training.
13. There were inconsistencies as to his duties for Hezbollah. At question 52 of his interview he said he was at a checkpoint in the street where he lived and that was the only area he worked in. However, his wife did not know if he worked in other areas.
14. The appellant produced a health card which he said was issued by Hezbollah to its members. The judge could see nothing on it to show membership of Hezbollah. At para 65 it is recorded that the appellant said he asked his sister to forward a threatening letter she had received as well as the medical card. When the envelope arrived however it had been opened and only the card was inside.
15. At paragraph 68 the judge refers to the name and address at the back of the copy envelope provided. The appellant did not know the name on the back but then said it was the person who owned the store where his sister had sent the letter from. The appellant said in Lebanon there was no postal service but some companies had a store where people could hand in letters.
16. The envelope had a franked postage stamp. At paragraph 72 the judge said because of this he rejected the appellant's claim that there was no Lebanese postal service and concluded a more likely explanation was that the letter was simply sent through a normal postal service. At paragraph 73 and 74 the judge stated:
"? in my duties as an immigration judge I have seen envelopes from very many if not most of the postal systems of the world. Although certain countries such as United States of America usually have any return address the written on the front of the globe, the great majority will have it written on the rear of the envelope. I have never heard suggested that the name and address written on the back of an envelope in this fashion when it is sent to a postal service is that the postal agency through which the envelope has been handled rather like being the name and address of the person who has sent it.
Of course Lebanon can be an exception to what in my experience is a general rule, but was held more I am not prepared to accept the appellant is explanation as being reasonably likely to be true."
17. The judge went on to comment about an inconsistency with the evidence of the appellant's wife who said the envelope was empty.
18. The judge then dealt with the appellant's claimed detention in January 2014. The appellant said he was released after signing a letter agreeing to fight in Syria and that Hezbollah would not be responsible if he were injured. At paragraph 80 the judge referred to a report from the Refugee Board of Canada in November 2011 which recorded that Hezbollah was not a de facto government. The judge concluded it was highly implausible they would have a system of disclaimers.
The leave application
19. The leave application seeks to fault the judge for his comments about the postal service in Lebanon.
20. It was also contended that the judge made assumptions about how Hezbollah would operate and conflated plausibility with credibility. There was also reference to the judge relying on a 2011 report which predated the hostilities in Syria.
21. It was also said that the judge failed to have regard to the possibility that the core of the account could be true notwithstanding untruths about peripheral matters.
22. It was suggest the judge failed to make allowances for the appellant's state of mind.
23. It was also contended that the appellant's representative was taken by surprise by the judge questioning the appellant's nationality.
The Upper Tribunal Hearing
24. At hearing Mrs Cleghorn referred to paragraph 18 onwards were the judge stated the appellant and his wife gave largely consistent accounts compared against the country information.
25. She also referred to the judge's comments about the postal system, pointing out the judge was not an expert.
26. She also referred to issues with the interpreter and submitted that the judge in the circumstance should have been slow to find inconsistencies.
27. She submitted that the judge was conflating issues of probability with credibility. An example was at paragraph 88 with the appellant stating he was in hiding at his sister-in-law's house despite being under surveillance. The explanation was that there were two entrances to the property.
28. She submitted that an expert report on Hezbollah could not be obtained given the nature of the organisation and the appellant should not be penalised for this.
29. She also referred paragraph 114 and the reference to the appellant's nationality.
30. In reply, Mrs R. Petersen suggested the latter might simply have been a slip of concentration.
31. Regarding the comments about the postal service she submitted the judge was not setting himself up as an expert and at paragraph 76 was prepared to accept that the envelope was posted in Lebanon. The key finding however was that the judge did not accept it had been demonstrated the envelope contained a copy medical card produced or that at some stage it contained a threatening letter.
32. Regarding the Canadian Refugee Report, this was contained in the appellant's bundle and what the judge said at paragraph 76 about Hezbollah not forcibly recruiting members was correct.
33. In assessing the appellant's evidence the judge was not forming an opinion based upon Western standards but was considering simply what the appellant said.
34. She submitted the judge was entitled to comment at paragraph 89 that it was not reasonably likely that Hezbollah would be so inefficient that they would only guide one entrance to a building.
Consideration
35. I am satisfied that the reference at paragraph 114 to the appellant's nationality is simply a slip on the part of the immigration judge. The decision indicates that the reasons for refusal letter was carefully considered. Paragraph 10 of the refusal letter states that the appellant's identity and nationality has been accepted. This would be consistent with the fact the appellant and his family had been issued with valid visit visas. The judge in the opening describes the appellant as a citizen of Lebanon. Nowhere else in the decision is there any reference to a doubt as to his nationality.
36. The judge found the appellant a difficult witness who was unable to give a straightforward answer to a simple question. Similar problems were encountered in his asylum interview. Some individuals can find it hard to listen to a question and to keep to the point. It can also suggest a person being evasive.
37. The judge considered language problems. The appellant had complained about the Iraqi interpreter used at the asylum interview. At hearing an Egyptian national was used without any apparent difficulty. The judge observed that the appellant appeared to have a good command of English and concluded that he would be able to voice any concerns at the time.
38. The judge had regard to the country information and the totality of the evidence of the appellant and his wife. The judge accepted that the claim was broadly consistent with country events. However there were numerous inconsistencies in the evidence which the judge reflected on.
39. The appellant did not give a consistent account as to when he worked for Hezbollah and what he did for them. The judge referred to his asylum interview (question 33) where he said he started with them in 2009 and stopped in 2012. He said he did not carry a weapon and had no training and worked at least six days a week from 8 PM to 2 AM. In the same interview a letter from his representatives was put to him which indicated he had been working for Hezbollah until he left Lebanon. However, in his statement he said that after being released in January 2014 he went into hiding until he left in December 2014.
40. There are contradictions in his account as to whether he was armed or not. There was uncertainty over what his duties where, with the appellant stating he only ever patrolled his own street with his wife not confirming this.
41. Regarding how the appellant came by the medical card the judge made the observation that the envelope had a franked postage stamp. On the face of it contradicted the appellant's account there was no postal service in Lebanon. I find this a matter of legitimate comment by the judge. The judge went on to say that the address on the back was indicative of the sender rather than a postal agency. The judge was not giving expert evidence but was simply commenting on his experiences. Whilst a decision on credibility must be reached rationally the decision maker is entitled to draw on their common sense and their ability as a practical and informed person to identify what is or is not plausible. A judge is not expected to operate as a machine in a sealed vacuum but is entitled to draw on his own experiences. The judge for completeness acknowledged that Lebanon might have its own unique system. Notably, there has been no application by the appellant's representative to introduce country information to demonstrate there is no postal service in Lebanon.
42. The appellant's representative sent in a BBC article on the treatment of Lebanese Sunnis for admission under rule 15 (2) (a). The covering letter states that it addresses the problems of Lebanese Sudanese with Hezbollah. The relevance of this is not apparent as the appellant states he and his wife are Shia. As an example of the balance in the judgement First-tier Judge Cope at paragraph 95 accept the possibility of a religiously motivated attack upon the appellant and his wife.
43. First tier Judge Cope commented at paragraph 78 on Hezbollah requiring a disclaimer of liability from the appellant for fighting in Syria. The judge found this extraordinary. I find no fault in the judge referring to a report submitted by a representative to make the point that Hezbollah are not a legitimate government or employer and the notion of a civil disclaimer was not credible.
44. The judge commented on other aspects of the detention and the claimed abuse and I find the comments appropriate. At paragraph 87 the judge specifically refers to the appellant's representative not referring him to any up-to-date information to contradict the report submitted that Hezbollah do not engage in forcible recruitment.
45. The judge then referred to the implausibility of the appellant hiding for an extended time at his sister-in-law's house, notwithstanding he claimed the property was under surveillance. I find the comments appropriate.
Conclusion
46. When looked at in the round the decision indicates that careful consideration was given to the claim and multiple inconsistencies and implausibility's noted. I find no substance in any of the issues raised on behalf of the appellant. The judge did not assess the credibility of the claim from a Western viewpoint but simply from common sense and based on contradictions in the account. My conclusion is that no material error of law has been demonstrated and the decision dismissing the appellant's appeal shall stand.

Decision
No material error of law has been demonstrated. The decision of First-tier Immigration Judge Cope dismissing the appellant's appeal shall stand.

Deputy Upper Tribunal Judge Farrelly