Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10265/2014

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 19th April 2016
On 04th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

MS VALIYEH SAREMI
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M K Bradshaw of Counsel
For the Respondent: Mr J Parkinson, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge M Swinnerton, promulgated on 18th May 2015, following a hearing at Stoke-on-Trent on 1st May 2015. In the determination, the judge dismissed the appeal of the Appellant, who subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a female, a citizen of Iran and was born on 23rd March 1964. She appeals against the decision of the Respondent Secretary of State, refusing her application for asylum and humanitarian protection under paragraph 339C of HC 395, in a decision dated 26th September 2014.
The Appellant's Claim
3. The Appellant's claim is that she has been accused of adultery, and of running a brothel in Iran, and that she has been subjected to harassment by a Mr Haj Hassan. She claims that she is at risk for having conducted a relationship which may be seen as improper. Her alleged boyfriend is a man by the name of Hamid. Haj Hassan has a role in the Basiji in Shiraz. The Basiji is Iran's secret police. The Appellant cannot return back to Iran. The Appellant also has three adult children by the name of Marjan Saremifard, Mozhgan Saremifard, and Hossein Saremifard, and she has a good relationship with all of them, all of them having lived with her in the family home.
The Judge's Findings
4. The judge gave due regard to the Appellant's claim. This was that the Appellant's boyfriend, Hamid Rahimi, who is a teacher in Iran, had placed her at risk even though she did not have a sexual relationship with him. He would visit her weekly or fortnightly and stay at her home in a separate bedroom when he visited for one or two nights. Her daughter, Marjan Saremifard worked in a hair salon and she was harassed by a man on a few occasions. After this harassment began, the Appellant and the daughter went to the local office of the Basiji to file a complaint against this man. The Basiji office is based at the mosque and the Appellant and Marjan, her daughter, attended the office there and informed Haj Hassan, who is a Basiji officer. Subsequently, however, Haj Hassan, after making investigations, asked the Appellant and her daughter to return to the Basiji office to identify the culprit, who was harassing Marjan. After the culprit was identified, the harassment that the Appellant's daughter Marjan had met with ended. However, Haj Hassan then started to attend at the Appellant's house regularly bringing gifts and making excuses to go there. He tried to encourage more observant behaviour in the family. Haj Hassan asked the Appellant for a temporary marriage and the Appellant refused this. On 20th November 2013, when Haj Hassan arrived at the Appellant's house, her boyfriend, Hamid, answered the door. Haj Hassan saw the Appellant in her home wearing comfortable clothes and a fight started between him and her boyfriend, Hamid. The Appellant was scared and distressed and she ran out of the house.
5. The refusal letter from the Respondent takes the fundamental point that the Appellant's claim is not based on a Convention reason at all. It is only accepted that the Appellant is an Iranian national. She had failed to demonstrate a reasonable degree of likelihood that she would be at real risk of persecution from Haj Hassan or the authorities.
6. The judge had regard to the Appellant's medical condition and referred to a report by Dr Sadeghi, which the judge said "lacked credibility" (paragraph 21). This was because the Appellant had said that during her interview she was unable to answer questions properly because she suffered from memory loss. The judge did not accept this. He also found that the Appellant's account was internally inconsistent (paragraph 21). Her evidence was that she had "contradicted herself" (paragraph 23). Moreover, the Appellant's claim that an arrest warrant had been issued against her was not believable because her evidence about this is inconsistent in the asylum interview (paragraph 24). Furthermore, there was lack of supporting evidence to assist the Tribunal in making findings in relation to the boyfriend, Hamid.
7. Moreover, nothing was known about the incident involving the boyfriend and Haj Hassan (paragraph 26). There was also no evidence which confirmed the existence of Haj Hassan and his role in the Basiji (paragraph 27). All in all, the judge rejected completely the evidence of the Appellant as not being a credible witness and
"Did not accept that she had been subjected to harassment by Haj Hassan, nor that the incident happened between him and Hamid, her boyfriend as she claims. Neither do I believe that she had conducted a relationship with Hamid which may be seen as improper and which would be considered to be adulterous in Iran" (paragraph 28).
This was a case where the Appellant had left Iran on her own passport (paragraph 28) and this in itself showed that she would not be at risk.
8. Regard was given to Article 8 of the ECHR but the claim was dismissed for the same reasons.
9. Finally, the judge considered the position of the children under Article 8. The Appellant had a daughter resident in the UK by the name of Maryam Rowghankaran, and she was a UK citizen. However, the Appellant had spent far longer of her life in Iran and she had a home there because of her deceased's husband's military service, and she was entitled to free health care there. It was entirely possible and reasonable for the Appellant to return back with the three adult children to Iran (paragraph 38). The appeal was dismissed both under paragraph 276ADE and under Article 8.
Grounds of Application
10. The grounds of application state that the judge gave little weight to the medical evidence, and there had been a failure to assess the witness evidence and to make findings in relation to what the witnesses said. In particular, the Appellant's children gave "other highly irrelevant evidence to the Tribunal" (see paragraph 8 of the grounds) which had not been properly considered. There were no findings in relation to this evidence.
11. On 11th June 2015 permission to appeal was granted on the basis that given that the Appellant's adult children had given evidence, this evidence should have been referred to and evaluated.
12. On 18th July 2015, a Rule 24 response was entered to the effect that the judge was correct in dismissing the children's evidence that their mother suffered from memory problems in trying to explain discrepancies. The judge also referred to the children's evidence at paragraph 23 in the context of the claim to asylum. The Appellant (the mother) was the main asylum seeker. She was interviewed and given appeal rights. The judge found that she lacked credibility. The judge was entitled to view the situation in the round which he did.
Submissions
13. At the hearing before me on 19th April 2016, the Appellant was represented by Mr M K Bradshaw of Counsel, and the Respondent was represented by Mr J Parkinson, a Senior Home Office Presenting Officer. Mr Bradshaw submitted that the core of this appeal before the Upper Tribunal was that the Appellant had, appearing alongside her, four other witnesses, namely, her four children. Of these three were the children dependent upon her appeal, and the remaining one was Maryam Rowghankaran, the daughter settled in the UK, as a British citizen. They had produced lengthy witness statements. Yet, the judge made no reference at all to these witness statements.
14. The judge may have had concerns about the Appellant's own evidence, but he could only assess that claim accurately, if he considered it in the context of all the evidence that was before him, and this included the additional evidence of the four children of the Appellant. Throughout the determination, there is reference to the children. It begins at paragraph 9 of the determination, where reference is made to the three children. It is said, "during the hearing the Appellant gave oral evidence as did four of her children" (paragraph 9). Then at paragraph 21 the judge considers the medical evidence in relation to the Appellant's claimed dementia, and her inability to recollect events, and the judge ends with the statement that, "in the absence of any credible medical evidence I attach little weight to the evidence the Appellant's four children gave about her claimed memory difficulties" (paragraph 21).
15. However, there is no substantive evaluation of the evidence given as such by these four different children. Then, at paragraph 23 the judge observes, the evidence from her, the Appellant's four children, is that "none of whom saw the alleged incident Haj Hassan and the Appellant's alleged boyfriend Hamid" (paragraph 26). However the evidence is not evaluated.
16. One reason why this could have led to a material error is that when the judge observes that the Appellant had the chance to claim asylum in France during the ten days when the family were there, the three children were also able to attest to what happened, and how the French authorities refused to consider the asylum claim. This should have been taken into account by the judge.
17. For his part, Mr Parkinson submitted that this was the Appellant's claim. The judge found the Appellant to be lacking in credibility. The children's evidence is almost identical in the witness statements to what the mother said. In fact, it is essentially based upon what the mother is alleged to have told the children. The mother's claim itself is based upon the incident between Haj Hassan and the Appellant's boyfriend, but the judge states that, as far as the children are concerned, "none of whom saw the alleged incident between Haj Hassan and the Appellant's alleged boyfriend Hamid" and then went on to conclude that, "I do not accept that she was harassed by Haj Hassan at all" and does so on the basis that, "her evidence about this has been internally inconsistent as has her evidence about her alleged flight from her home" (paragraph 23).
18. This showed that, even if the evidence of the four children was not individually considered, it would have made no material difference whatsoever. The Appellant failed simply on account of the evidence that she herself gave. In short, if the judge was entitled to reject the evidence of the Appellant herself, he was entitled to reject the evidence of the four children as well, as that evidence simply repeated what the Appellant herself had said.
19. In reply, Mr Bradshaw submitted that it was not true that the witness statements simply reiterated what the Appellant herself had said. For example, there were no findings in relation to the first incident, namely, the incident where the Appellant's daughter had alleged that she had been harassed by another man, after which Haj Hassan had come to their assistance, and then started taking interest in the Appellant herself. There ought to have been a finding on this point. Finally, as far as Ground 2 was concerned, there had been a flawed approach to the medical evidence. This is because the year for which the Appellant was being treated had been misinterpreted given that it was put down in the Farsi text and the Persian calendar here spans two Gregorian calendar years.
No Error of Law
20. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows.
21. First, this is a case where the judge has found the Appellant's own evidence to be "internally inconsistent" (see paragraph 21 and see paragraph 23). He has not believed the alleged incident between Haj Hassan and the Appellant's alleged boyfriend.
22. Second, insofar as it is said that the judge failed to make specific findings on all issues before him, it is not material that the judge made no finding on whether the Appellant's daughter had been earlier harassed by somebody else, because the asylum claim itself is based upon the harassment by Haj Hassan, and that evidence is specifically rejected by the judge as being lacking in credibility.
23. Third, the Appellant's claim that she had been affected by memory loss and dementia is singularly rejected by the judge in a lengthy paragraph 21, and it does not matter here that the reference is to the Persian calendar or the Gregorian calendar, because the judge has not found Dr Sadeghi to be a credible witness in his medical statement.
24. Fourth, the judge does consider the evidence of the children, but either finds that it is not materially relevant to the main issue before him, or rejects it outright. For example, in relation to the Appellant's memory loss, the judge states that, "in the absence of any credible medical evidence I attach little weight to the evidence the Appellant's four children gave about her claimed memory difficulties". As far as the harassment from Haj Hassan goes when he saw the Appellant together with her alleged boyfriend, Hamid, the judge makes it clear that none of the children saw the alleged incident, and rejects this anyway on the basis that the Appellant's account is "internally inconsistent" and that the Appellant had contradicted herself in her own evidence.
25. Finally, the judge was entitled to conclude as he did in relation to the failure to claim asylum in France, and the evidence of the children is again not materially relevant, because the judge makes it clear that,
"Her claim that she told the French authorities she wished to claim asylum but was told that she had three days to leave the country and no application for asylum processed is implausible. The Appellant has not produced any supporting documents to evidence this claim and no credible explanation why she did not claim asylum in France" (paragraph 25).
For all these reasons, the judge was correct to conclude as he did.
Notice of Decision
26. There is no material error of law in the original judge's decision. The determination shall stand.
27. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 2nd August 2016