Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10542/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 27 February 2017
On 3 March 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
PATA MBELA HIZA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Faryl instructed by IAS
For the Respondent: Ms Abomi Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Appellant was born on 22 July 1978 and is a national of the Democratic Republic of the Congo.
3. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
4. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Davies promulgated on 7 June 2016 which dismissed the Appellant’s appeal against the decision of the Respondent dated 14 July 2015 to dismiss the Appellants protection and human rights claims.
5. The refusal letter gave a number of reasons:
(a) It was accepted that the Appellant had a high-profile involvement with Amajma and that he continued his involvement after he fled to South Africa in 2006.
(b) It was accepted that the Appellant had been detained twice in the DRC in 2003 and 2005 because of his role as head of Amajma and that on both occasions he was ill treated by the security forces of the DRC which caused him to flee to South Africa in 2006.
(c) The Appellants claim to have participated in a march protesting against electoral fraud on 5 November 2011 is not confirmed by the background material and is inconsistent with the fact that the election had not yet occurred.
(d) The Appellant claimed that he suffered attacks on 20 January 2013 and 20 December 2014 which were linked to his involvement with the march on 5.11.2011. The fact that he was attacked was accepted. However it was not accepted that the South African Security forces were involved in either of the attacks.
(e) The Appellants credibility is undermined by the fact that he produced a passport which he knew to be false on arrival in the UK.
(f) While it was accepted that the Appellant had a well founded fear of persecution in the DRC it was not accepted that he had one in South Africa where he had a right to reside.
(g) While the background material suggested that DRC citizens who were illegally resident in South Africa are sought by and returned to the DRC there was nothing to suggest that those who were legally resident in South Africa were removed.
(h) There was no background material to suggest any pact either informal or formal between the security forces of each government to seek out and return political opponents of the Kabila regime to the DRC.
(i) Given that the Appellant had permanent residency status in South Africa the Appellant could approach the South African authorities if he was experiencing difficulties with the DRC security forces present in South Africa.
(j) There was nothing to suggest there was not sufficiency of protection.
(k) There was no other basis for a grant of leave.
The Judge’s Decision
6. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Davies (“the Judge”) dismissed the appeal against the Respondent’s decision.
7. Grounds of appeal were lodged which argued that the Judge had failed to make a finding on the core aspect of his claim that the incidents complained of that occurred in South Africa were carried out by the DRC authorities alone or in collusion with the South African security forces; The Judge failed to take into account the verbal threats received by the Appellant; the Judge failed to take account that the Appellants evidence that people with legal status in South Africa were returned to the DRC was unchallenged by the Respondent.
8. On 29 June 2016 Designated Judge Manuel refused permission to appeal. The grounds were renewed and on 4 August 2016 Upper Tribunal King granted permission.
9. At the hearing I heard submissions from Ms Faryl on behalf of the Appellant that
(a) The Judge failed to make a finding about the core incident, that the South African authorities acted in collusion with the authorities of the DRC.
(b) The Judge failed to engage with the argument that even those in South Africa legally could be returned to the DRC. It was an artificial distinction to draw between those in South Africa legally and those there illegally.
(c) She argued that Upper Tribunal King had given permission to challenge in respect of both of the core issues he identified in the grant.
10. On behalf of the Respondent Ms Abomi submitted that:
(a) She relied on the Rule 24 response dated 1 September 2016.
(b) The Judge directed himself appropriately and gave adequate reasons for his findings.
(c) The Judge accepted and identified those elements of the account that were accepted but made findings that the incidents he describes were not related to his political activities.
(d) The Judge identified the gap between the two incidents and took into account the high levels of crime in South Africa and thereafter addressed the issue of collusion between the South African authorities and those of the DRC.
(e) In relation to the risk of forcible removal the Judge considered the background material and concluded that as a lawful resident the Appellant was not at risk.
11. In reply Ms Faryl on behalf of the Appellant submitted:
(a) The Judge focused on the two attacks and did not consider the telephone threats.
(b) In relation to the risk of removal the Appellants case was that the DRC acted alone or in collusion with the South African authorities. The Appellants case was that those with leave were also returned and that while the South African authorities may not actively seek to return people they could turn a blind eye.

The Law
12. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
13. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge’s factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law.
14. In relation to adequacy of reasons I take into account In VV (grounds of appeal) Lithuania [2016] UKUT 00053 (IAC) where it was held that
(i) An application for permission to appeal on the grounds of inadequacy of reasoning in the decision of the First-tier Tribunal must generally demonstrate by reference to the material and arguments placed before that Tribunal that
(a) the matter involved a substantial issue between the parties at first instance and
(b) that the Tribunal either failed to deal with that matter at all, or gave reasons on that point which are so unclear that they may well conceal an error of law.
(ii) Given that parties are under a duty to help further the overriding objective and to co-operate with the Upper Tribunal, those drafting grounds of appeal
(a) should proceed on the basis that decisions of the First-tier Tribunal are to be read fairly and as a whole and without excessive legalism;
(b) should not seek to argue that a particular consideration was not taken into account by the Tribunal when it can be seen from the decision read fairly and as a whole that it was (and the real disagreement is with the Tribunal’s assessment of the evidence or the merits); and
(c) should not challenge the adequacy of the reasons given by the First-tier Tribunal without demonstrating how the principles in (i) above have been breached, by reference to the materials placed before that Tribunal and the important or substantial issues which it was asked to determine in that particular case.
Finding on Material Error
15. Having heard those submissions I reached the conclusion that the Tribunal made no material errors of law.
16. I am satisfied that the grant of permission recognised that the Judge had correctly identified in paragraph 5 of the decision the two matters that were in issue in the Appellants case against a factual matrix where that it was accepted because of his political activities the Appellant was at risk if returned to the DRC and that he and his wife had indefinite leave to remain in South Africa. The Judges brief but accurate summary of the Appellants case included the fact that he had been the subject of telephonic threats shortly before being hit by a motor cycle and shots being fired at his car: he was not required to set out in detail every detail of the Appellants account if it was clear that he had taken the evidence into account which a fair reading of his decision makes plain.
17. I am satisfied that the challenge (paragraph 9 of the Grounds) that the Judge failed to engage with the argument that the incidents complained of were carried out by the DRC authorities alone or in collusion with the South African authorities is without merit. The Judge in his summary as indicated above acknowledged the claim that the incidents were linked to the telephone threats. While not an explicit finding he would have course have been entitled to note that in relation to the incidents he described there was no direct evidence of collusion. The Judge nevertheless examined and analysed the background material at paragraphs 18-20 in careful detail. Against this background and the chronology given by the Appellant I am satisfied that the Judge explicitly identified this argument in paragraph 22 of his decision and gave adequate reasons for rejecting it: against the history he made findings in paragraph 21 about the demonstrations in 2011 in South Africa against the DRC regime leading to a round up of Congolese nationals noting that the Appellant was not arrested nor did he leave South Africa until 2015. He made a finding that was open to him that if such collusion occurred given his profile he would have been arrested in 2011 and any attacks would have occurred earlier.
18. It was also open to him to reject the circumstantial evidence that there was a link between the phone calls and the attacks given the accepted high levels of crime in South Africa.
19. In relation to the argument that there was a real risk of the Appellant being returned to the DRC I am satisfied that Upper Tribunal Judge King found that the Judge gave ‘clear reasons’ that there was no such risk. However even had he not intended to limit his grant in such a way I am satisfied that against his analysis of the background material the Judge was entitled to conclude that the background material did not support such an assertion. Moreover he was entitled to conclude that the fact that the Appellant was not arrested after the 2011 demonstrations which it was accepted he had participated in and that he had not fled at that time when the risk to Congolese nationals was so high and included , on his case, those who were there legally, suggests that those who were lawfully resident were not at risk.
20. I remind myself of what was said in Shizad (sufficiency of reasons: set aside) Afghanistan [2013] UKUT 85 (IAC) about the requirement for sufficient reasons to be given in a decision in headnote (1) : “Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge.” I was therefore satisfied that the Judge’s determination when read as a whole set out findings that were sustainable and sufficiently detailed and based on cogent reasoning.
CONCLUSION
21. I therefore found that no errors of law have been established and that the Judge’s determination should stand.

DECISION
22. The appeal is dismissed.

Signed Date 2.3.2017

Deputy Upper Tribunal Judge Birrell