Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11507/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 28 March 2017
On 28 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

BM
(anonymity order made)
Appellant
and

SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr N Vaughan, nbs Solicitors
For the Respondent: Ms H Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The First-tier Tribunal made an anonymity direction and given the nature of this appeal is it appropriate to make an order in similar terms under rule 14 of the 2008 Upper Tribunal Procedure Rules. The order is set out in full, below my decision.
2. The appellant appeals with permission to the Upper Tribunal against the decision and reasons statement of First-tier Tribunal Judge Juss that was issued on 17 December 2015. Judge Juss dismissed the appeal against the Home Office’s decision of 31 July 2015, which refused to grant the appellant asylum from Iran.
3. Permission to appeal was granted by First-tier Tribunal Judge Ransley on the following four grounds:
a. It is arguable that the Judge failed to make a ruling as to whether the late documentary evidence submitted by the appellant’s representative was of importance in assisting the determination of the appeal and therefore should be admitted in the interest of justice.
b. It is arguable that the Judge failed to assess whether the appellant’s case is consistent with the available objective evidence provided to the court.
c. It is arguable that the Judge placed excessive weight on the appellant’s answers when he was asked by the HOPO to speculate on the behaviour of the Iranian authorities and how he had been identified by them.
d. It is arguable that the Judge erred in law for making adverse findings against the appellant merely because of the lack of medical or psychological evidence and the absence of any summons/arrest warrants.
4. In the rule 24 response dated 1 February 2016, the respondent opposed the appeal. In summary, the respondent pointed out that Judge Juss had examined the late evidence before deciding what to admit and what to exclude. The key additional evidence was that of a witness; Judge Juss heard his evidence and found it to be unreliable. The other documentary evidence could not, in such circumstances, assist the appellant’s case whether it was admitted or excluded. The decision and reasons statement referred to Judge Juss considering all the evidence provided in accordance with directions and that included the background country information. The second ground was, therefore, unfounded. As to the third ground, it is, of course, for the judge to decide what weight to give any evidence and in the absence of any legal perversity, the third ground is baseless. The respondent suggests there is nothing in the final argument for a similar reason; it is open to a judge to decide that a claim is unfounded because of a lack of evidence.
5. Although Mr Vaughan acknowledges that Judge Juss did not exclude the late evidence of a witness, he submitted that Judge Juss misdirected himself regarding the evidence. The evidence provided by the witness was to confirm that the appellant was known to the KDPI officials in Paris. The establishment of this link was highly material to the case and was more than mere corroboration. Mr Vaughan submitted that Judge Juss failed to have regard to the Home Office’s own country information that referred to the Paris Committee of the KDPI, which made the evidence reliable.
6. In relation to the third and fourth grounds, Mr Vaughan submitted in essence that the appellant did not need to prove anything in relation to the chicken farm because the incident was not in dispute. In any event, the lack of independent evidence about the incident was explained by the suppression of information in Iran, as argued in the original skeleton argument. Mr Vaughan submitted that the lack of evidence was not a basis from which Judge Juss could infer the appellant was lying.
7. Ms Aboni relied on the rule 24 notice as outlined above. In addition, she submitted that irrespective of the issues identified by Mr Vaughan, Judge Juss had found the appellant’s evidence to be incoherent and inconsistent in every respect. It was on this basis he found the appellant had not given a credible account. Ms Aboni said Judge Juss had properly examined the evidence. He found the appellant’s evidence to lack credibility. He rejected the independent witness because that witness had insufficient knowledge of the appellant. There was no independent or documentary evidence to suggest a different outcome.
8. At the end of the hearing, I reserved my decision on all issues.
9. I turn to the question of whether the decision and reasons statement contains an error on a point of law.
10. The first issue is without merit. Judge Juss applied the relevant provisions of the 2014 First-tier Tribunal Procedure Rules to a situation where the appellant had not complied with directions. Judge Juss did not take a hard line and that he kept in mind the overriding objective. This is evident by the fact he permitted the KDPI witness to give evidence. The other documentary evidence was not material as it did not address the risk factors relied upon by the appellant.
11. The second issue relates to whether Judge Juss’s assessment of the KDPI witness in paragraph 15 of the decision and reasons statement is sound. Judge Juss found the witness’s evidence was weakened by the fact he had no personal knowledge of the appellant and could not explain how the KDPI Paris Committee knew the appellant’s family. On the face of the limited evidence presented, this is a reasonable conclusion.
12. The appellant’s key argument is that there is no reference to the background country information. The appellant provided three Home Office reports. The 2015 Information and Guidance report describes three categories of people known to the KDPI Paris Committee, including members, sympathisers and friends. The report is not wholly clear as to what information the Paris Committee would have on each category. Members who had come to the attention of the Iran regime were encouraged to leave Iran. Sympathisers would only be known to the local cells. Friends would be those who supported the aims of the KDPI.
13. I do not see how these vague descriptions can give any added weight to the evidence of the witness. The report merely confirms there is a Paris Committee and that it has knowledge of some people with KDPI links.
14. The appellant’s account is, of course, important in this context. He claims that until 1990 some of his relatives had been involved in the KDPI and had been killed by the Iranian regime because of their links. This had resulted in the appellant’s immediate family not being involved in the KDPI in any capacity. The KDPI witness did not reflect any of this family history in his evidence. As I have mentioned, Judge Juss recorded that the witness had no personal knowledge of the appellant.
15. As expressed by Judge Juss, the fact the witness was unable to describe how the appellant’s family was known to the Paris Committee was fundamental to what weight to give the evidence. The appellant stated his immediate family was not involved with the KDPI, which, if true, would meant the Paris Committee would not have any knowledge of the appellant’s immediate family because they were not members, sympathisers or friends. The only possibility would be that the family were known to be related to other relatives who were executed by the Iranian authorities some time ago.
16. Judge Juss was alive to these possibilities as shown in paragraph 20 of his decision and reasons statement. The evidence does not establish how the appellant is at risk of persecution because of his historic connection to those relatives. That finding is not challenged other than about the weight given to the KDPI witness’s evidence.
17. I conclude the second ground is not made out. Judge Juss’s conclusions are sound.
18. The third ground is mistaken. At paragraph 20 Judge Juss describes the appellant’s evidence as “incoherent and inconsistent in every possible respect.” Judge Juss starts by explaining that the appellant has not explained how it was possible for his family to own and run a business if they were considered to be troublesome to the regime. This is a fundamental inconsistency, given the background country information. If the family were seen as being linked to the KDPI, then they would have had difficulties from the authorities. It was open to Judge Juss to take this inconsistency into account, particularly bearing in mind the usual method for assessing credibility that is set out in paragraph 339L of the immigration rules.
19. At paragraph 21, Judge Juss describes the appellant’s evidence as “woefully inadequate.” Judge Juss is not, therefore, saying the appellant could not be believed because he has given three distinct explanations. He is saying that the appellant was unable to say how he might have been arrested and relied on speculation. It is reasonable to expect a person to have some idea about the circumstances of an arrest. The appellant demonstrated no reasonable knowledge, and it was open to Judge Juss to find the account was inadequate.
20. I also find the fourth ground to be without merit. In my opinion, there is no indication Judge Juss was expecting the account to be corroborated by medical evidence or Iranian legal documents. Judge Juss was merely recording that there were no other sources of evidence to be considered other than the appellant’s own account.
21. All in all, I am satisfied Judge Juss had a proper grasp on the key elements of the appellant’s claim. He identified there were two key elements that could be taken individually and collectively. The first was whether the appellant was at risk because of a distant link his family had to members of the KDPI. Judge Juss rejected that because of the weakness of the evidence given by the appellant and the KDPI witness. The second was whether the appellant had been involved in a demonstration. Inconsistency and lack of detail led Judge Juss to find the account to be devoid of credibility. Judge Juss was entitled to come to that decision; it is well reasoned and based on the lack of evidence.
Decision
The decision and reasons statement of Judge Juss does not disclose legal error.
Order regarding anonymity
I make the following order. I prohibit the parties or any other person from disclosing or publishing any matter likely to lead members of the public to identify the appellant. The appellant can be referred to as “BM”.

Signed Date 27 April 2017

Judge McCarthy
Deputy Judge of the Upper Tribunal