Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10766/2015

THE IMMIGRATION ACTS

At Liverpool
on 19th January 2017
Decision and Reasons Promulgated
on 19th April 2017

Before
DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

JNAA
(ANONYMITY DIRECTION MADE)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: M. A. Adebayo, Solicitor, A2 Solicitors.
For the Respondent: Mr G. Harrison, Presenting Officer.

DECISION AND REASONS
Introduction

1. The appellant has been given permission to appeal the decision of First-tier Tribunal Judge Thornton who dismissed his appeal against the respondent's refusal to grant him asylum and humanitarian protection.

2. The claim is that he is an undocumented Kuwaiti Bidoon who was born in 1979. He is at risk on return because of his political opinions, having taken part in demonstrations for Bidoon rights. A further aspect of his claim is that he is at risk because of his race and membership of a particular social group, namely, as a Bidoon.

3. He said he took part in a demonstration on 18 February 2014 which was dispersed by security forces. He was apprehended and taken to a security facility where he was tortured. At the beginning of April 2014 he was released on the understanding he provide information within one week about the organisers and the speaker at the demonstration. He went into hiding until mid January 2015 when he left by plane, using a passport provided by an agent. He transited through a third country and then flew on to the United Kingdom. He claimed the following day.

4. The respondent refused his claim on the basis he was not an undocumented Bidoon albeit it was accepted he was from Kuwait. His account of having attended the demonstration and subsequent difficulties was rejected. The respondent accepted that if in fact he where an undocumented Bidoon then he would be at risk.

The First tier Tribunal

5. First-tier Tribunal Judge Thornton heard from the appellant and two witnesses. The hearing bundles contained country information and the country guidance decision of NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 00356(IAC).

6. The judge did not find the appellant or the witnesses to be credible; did not find it established that the appellant was an undocumented Bidoon; and concluded the entire account was fabricated.

7. The decision at paragraph 18 to 30 sets out the reasons. The country guidance case found that documented Bidoons did not face a risk of persecution whereas undocumented Bidoon did. Bidoons who did not register between 1996 and 2000 and consequently who did not obtain security cards where undocumented Bidoons. The appellant's case was his family had never registered in the 1965 census because they were living in the desert. On three occasions he attempted to register but was told documentation was only given to those who were in the 1965 census. First-tier Tribunal Judge Thornton rejected this claim because:

(a) His account was not consistent with the country guidance case. The evidence did not support the claim that documentation was only issued to those registered in the 1965 census.

(b) His account was internally inconsistent and incredible:

(i) He was inconsistent about his place of birth. In his asylum interview, statement, and at the start of his cross-examination he said he was born and lived with his parents in the desert in Matalla. He said that in the 1980s his family moved to a town Al Waha, in the city of Al Jahra.His younger brothers and sisters were born there. He said the two paces were 30 km apart. In cross-examination he was asked about his screening where he indicated he was born in the city of Al Jehna . The judge did not accept his explanation that he said he was born in the city because it was opposite the Desert.

(ii). The background information confirmed there was a demonstration on 18 February 2014. However, this information was in the public domain. He claimed the authorities wanted to know about A.A., a prominent speaker and other activists. However he said AA had been arrested the following day and this was consistent with country information.Consequenty, there would be no need for the authorities to want this information.

(iii). He had provided no medical evidence to support his claim of torture which included the removal of his toenails and the breaking of his teeth.

(iv) The appellant’s son was born on 15 January 2015. The appellant said he was detained on 18 February 2014, released in April 2014 and went into hiding until he left the country. The judge considered the likely date of conception was not consistent with the account of being in hiding. The appellant explained that his wife had joined him. The judge recorded he said in cross-examination that his wife returned to their home in December 2014 in order to give birth. However, at screening he said he last saw his wife in January 2015. The judge also found the appellant's account of contact with his family during the period incredible.

8. The two witnesses called on behalf of the appellant had been granted refugee status on the basis they were undocumented Bidoons. They said they knew the appellant in Kuwait. The judge was not satisfied as to how the first witness came in contact with the appellant in the United Kingdom. Regarding the second witness, the judge was not satisfied as to the explanation given for not seeing the appellant in the year before the witness left the country. The judge said that the fact the two witnesses had been given refugee status did not mean that the appellant was an undocumented Bidoon.

The Upper Tribunal

9. The renewed application for permission to appeal to the Upper Tribunal contended (para 5) that the judge did not adopt a balanced approach. It was also submitted that the judge applied too high a standard of proof.

10. The application contends that the judge was wrong in concluding that the appellant's account was inconsistent with the country guidance decision and background evidence about registration. Reference was made to paragraph 36 of the country guidance decision and paragraph 47, which refers to the evidence of a country expert to the effect that applications were frequently denied and dealt with on a discretionary basis.

11. It was suggested that the judge misdirected herself in the assessment of the claim about being arrested, detained, and subsequently released. Having acknowledged the background evidence confirmed the demonstration did take place it was wrong the judge to find the appellant's claim inconsistent.

12. The comments made about the birth of the appellant's child were challenged; with the contention being on the chronology conception was possible.

13. It was also contended that the reasons for rejecting the evidence of the two supporting witnesses were inadequate.

14. At hearing, Mr Adebayo contended that the judge’s credibility assessment was flawed. He pointed out that not all Bidoon have security cards and referred to the country expert’s evidence in the country guidance hearing that cards were issued on a discretionary basis. He submitted the appellant’s evidence about attending a demonstration and being arrested was consistent. Mr Adebayo suggested that the authorities might have released him so that he could supply evidence about others. Regarding the birth of the appellant’s child in January 2015 he submitted it was credible the child was conceived shortly after the appellant was released in April 2014. Regarding the appellant's place of birth he said that evidence had been produced from Wikipedia to show the account was consistent. Mr Adebayo said that the two witnesses called did not go to the core of the appellant's claim. Their evidence was simply that they knew the appellant in Kuwait.

15. In response, Mr Harrison submitted that the points being made in relation to where the appellant was born and the conception of his child and so forth were open to the representatives to make at the First-tier tribunal. He submitted it was now simply the case the points were being introduced in an attempt to re-argue the appeal.

Consideration

16. It is for the appellant to establish there is a material error of law in the decision. Having considered the points made in the application and at hearing I agree with Mr Harrison that what is advanced is largely an attempt to reargue the claim. I find no material error of law demonstrated

17. Paragraph 14 of the decision indicates the judge appreciated the low standard of proof applicable.

18. The net issue was whether the appellant was an undocumented Bidoon. If he was, then it was accepted his claim would succeed. There was a language analysis but this can only concluded that the appellant belonging to a Gulf Arabic linguistic community. The respondent accepted he was from Kuwait.

19. A Bidoon is considered to be without nationality by the Kuwaiti government. The judge and the representatives had the advantage of the country guidance decision NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 00356 (IAC). It concluded that the difference between the documented an undocumented Bidoon is the holding of a Kuwaiti security card. Most Bidoon carry security cards. There are two types of cards: one lasting two years issued to those registered in 1965 or if they have lived in the country from before then. Given the appellant's age the latter would not apply to him. The second type last for one year and covers those not falling into the first group. The respondent contends that the country information indicates that a Bidoon not registered 1965 can still apply for a security card. The judge refers to this at paragraph 19.

20. The judge had regard to the country information and the country guidance case. This did not support the appellant's claim that he was not allowed to register between 1996 and 2000 because his family had never registered in 1965. The material quoted indicates that applications for registration can be made by people not registered in 1965. Consequently this was a conclusion open to the judge.

21. The judge did not believe the appellant's account of being arrested following a demonstration. The judge did not simply adopt the grounds of refusal as suggested in the leave application. Rather, at paragraph 25 and 26 the judge analysed the evidence including the interview. The appellant suggested the authorities wanted information on the speaker. Given that the speaker was in custody and the appellant was contradicting himself the judge was entitled to use this as an adverse credibility point. Other reasons for his release are referred to in the rebuttal statement from the appellant. However, the judge was commenting on the inherent contradiction in the appellant's account.

22. In support of dismissing the appellant's account of being arrested, the judge referred to his account of contact with his family thereafter. On a strict chronology conception of the appellant’s son could have taken place after release. The appellant said his wife had joined him when he was in hiding in a stable. This was not a situation where counting backwards the appellant would have been in custody at the time of conception. The judge does not make an error as to dates but makes the logical point that the date of conception is neutral (Para 28(i)). Where the claim of going into hiding unravels is in the cross-examination, where the appellant said his wife returned to the family home in December 2014 to give birth and she never returned. On this account it meant the last time he saw his wife was December 2014. However, at screening he said it was 19 January 2015. His reply when questioned was that in fact it was not his wife he saw but his own mother and his son. He then said he was confused. It was a legitimate for the judge to view this as affecting the credibility of his account. Details are given at paragraph 28(iii) and (iv).

23. The evidence of the two witnesses called did not answer the central question. The judge made a logical point that because they had been granted asylum as undocumented Bedoons did not of itself mean the appellant was undocumented. The judge did not find there evidence credible and gave reasons at paragraph 29 and 30. I can see no fault with this.

24. It is my conclusion that the judge clearly engaged with all of the evidence and made adverse credibility findings on the central aspects of the claim. The relevant background information was referred to. The judge found the appellant's account about his unsuccessful attempts at obtaining documentation to lack credibility in light of the country evidence. The inconsistencies in relation to the claim of detention and release raised by the judge were open to her on the evidence. The judge did not err in relation to the date of conception and incarceration. The point being made was the inconsistency in connection with the subsequent contact between his wife and son. It is my conclusion an error of law has not been established and the decision dismissing the appellant's appeal shall stand.

Decision.

No material error of law has been established. The decision of First-tier judge Thornton dismissing the appellant's appeal shall stand.

Deputy Upper Tribunal Judge Farrelly.

19th January 2017