Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11882/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th October 2016
On 13th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

ASN
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Saleem of Malik & Malik Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and Background
1. The Appellant appeals against the decision of Judge Abebrese of the First-tier Tribunal (the FtT) promulgated on 5th August 2016.
2. The Appellant is a male Afghan citizen born 11th February 1996. His asylum, humanitarian protection, and human rights application was refused by the Respondent on 18th August 2015.
3. The appeal was heard on 25th May 2016. After hearing evidence from the Appellant and his father, who has settled status in the United Kingdom, the FtT found the core of the claim not to be credible.
4. The FtT did not accept that the Appellant or his family were of any adverse interest to the Taliban. It was not accepted that threatening letters were received, nor was it accepted that one of the Appellant's brothers was taken away by the Taliban and never seen again.
5. The FtT did not accept that the Appellant was attacked by the Taliban and it was not accepted that the Appellant fled from Afghanistan because his father had previously been of adverse interest to the Taliban.
6. The FtT found that the Appellant had not proved, even to the lower standard, that he would be at risk on the basis of imputed political opinion if he was returned to Afghanistan. The FtT found that the Appellant would have a sufficiency of protection. The appeal was dismissed on all grounds.
7. The Appellant applied for permission to appeal to the Upper Tribunal relying upon three grounds which are summarised below.
Ground 1
8. It was contended that the FtT had failed to properly evaluate the evidence given by the Appellant and his father. It was contended that the FtT was wrong to find an inconsistency in the evidence. The FtT at paragraph 32 found that the Appellant's father had indicated that he left Afghanistan, prior to the departure of the Appellant, because he was running a video shop which made him a target for the Taliban. There was no mention in his witness statement that he was targeted by the Taliban due to him having caused the death of several of their members which was the case put on behalf of the Appellant.
9. It was contended that the FtT had not properly considered the witness statement made by the Appellant's father, nor the witness statement and oral evidence given by the Appellant.
Ground 2
10. With reference to paragraph 24 of the FtT decision, the evidence given by the Appellant had been inaccurately recorded. The Appellant's evidence was that he and his mother travelled from Afghanistan to Pakistan in order to meet his father, not that his father travelled to Afghanistan. It was contended that the FtT had wrongly recorded at paragraph 24 that the Appellant's father had made eleven visits in total to Afghanistan and Pakistan. It was submitted that the failure to consider the inability of the Appellant's father to travel to Afghanistan due to the risk that he would face as a person wanted by the Taliban, had impacted upon the findings made by the FtT as to whether the Appellant would be at risk as a family member.
Ground 3
11. With reference to paragraph 41 of the FtT decision, it was submitted that the FtT had erred by finding that it would be proportionate to remove the Appellant from the United Kingdom. It was submitted that this conclusion failed to take into account the particular circumstances of the Appellant and the background evidence highlighting a decline in the security situation in Afghanistan. It was submitted that the FtT finding that the Appellant had family to return to in Afghanistan was inaccurate, and had caused an inaccurate assessment of proportionality.
12. Permission to appeal was granted by Designated Judge Macdonald in the following terms;
"The grounds of application contend (Grounds 1 and 2) that the judge misread the evidence.
The judge rejected the evidence of the Appellant's father principally because there was no mention in the witness statement which he has prepared that he was chased by the Taliban due to him having caused the death of several of their members (paragraph 32).
However, as stated in the grounds, the Appellant's father had stated that the Taliban were interested in finding him. Accordingly it is arguable that the basis of the judge's reasoning is unsound. Permission to appeal is therefore granted to include Ground 3 albeit there may be little merit in that particular ground."
13. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The author of the response did not have access to the file or hearing bundles, and therefore could not respond to Grounds 1 and 2. It was submitted that Ground 3 was without merit in that the FtT was considering a situation where it had been found that there would be no risk to the Appellant on return, and therefore it was not an error in law to find that removal would be proportionate.
14. Directions were issued that there should be an oral hearing before the Upper Tribunal to ascertain whether the FtT had erred in law such that the decision should be set aside
The Appellant's Submissions
15. Mr Saleem relied upon the grounds contained within the application for permission to appeal. I was referred to the Appellant's supplementary bundle and the Appellant's witness statement dated 23rd May 2006, and in particular paragraph 9. This statement had been before the FtT. In summary the Appellant in paragraph 9 confirmed that his father had been arrested and detained because of his video business, but the interest in him by the Taliban in later years was because of his background with Hezb-e-Islami and the Taliban wanted to trace him. The Appellant's father was blamed for many Taliban losses.
16. In paragraph 10 the Appellant explained that in 2010 the Taliban had sent a threatening letter to the family home. The Appellant's father left Afghanistan in 1999 but the Taliban were not aware of this and were still searching for him.
17. I was then referred to the Appellant's father's witness statement dated 23rd May 2016, which again had been before the FtT. At paragraph 4 the Appellant's father had given further information than had been quoted by the FtT at paragraph 31. The FtT had set out part of paragraph 4 which related to the Appellant's father being arrested and detained by the Taliban in 1999 because of his video shop. The Appellant's father had gone on to say in paragraph 4 of his witness statement that since he came to the UK in 2000, the Taliban were the main enemy. When the Appellant was in Afghanistan the Taliban were seeking to trace the Appellant's father due to his previous Hezb-e-Islami involvement. The Taliban blamed the Appellant's father for deaths of their members when he was with Hezb-e-Islami.
18. Mr Saleem submitted that the FtT had not taken into account, or had misread or misunderstood the evidence given by the Appellant and his father, and they had not omitted from their evidence the fact that the Taliban had been searching for the Appellant's father. Therefore the FtT had been wrong to find an inconsistency.
19. Mr Saleem went on to submit that paragraph 33 of the FtT decision was linked to paragraph 32, and contained inadequate reasoning for the findings made. The main reason given for finding the account incredible was the alleged inconsistency in the evidence as to whether the Appellant's father had been subject to the adverse attention of the Taliban because of his video shop, or because he was accused of being involved in the deaths of Taliban members when he was a member of Hezb-e-Islami.
20. Mr Saleem had no oral submissions to make in relation to Grounds 1 and 2.
The Respondent's Submissions
21. Mr Whitwell's position was that the FtT had erred in law in making an incorrect reference to the evidence given by the Appellant and his father, and in particular had not taken into account the totality of the Appellant's father's witness statement.
22. However Mr Whitwell submitted that the error was not material because the FtT had given two other reasons for finding the account incredible.
23. The first of these reasons was the determination of an Immigration Adjudicator dated 10th October 2004 which related to the Appellant's father's claim to asylum. His asylum appeal had been dismissed on asylum and human rights grounds. The FtT made reference to this determination in paragraph 32, noting that it had been found that "the Appellant and his extended family had never experienced problems in their home area on the basis of the Appellant's father's membership of Hezb-e-Islami".
24. The second reason for finding the account incredible was the length of time that had passed before a threatening letter from the Taliban was received. The Appellant's father left Afghanistan in 1999, and it was not until 2010 when the first threatening letter was received.
25. With reference to Ground 2, Mr Whitwell stated he could be of little assistance, because the notes taken by his colleague who appeared before the FtT did not indicate whether the Appellant had stated in cross-examination that his father had visited Afghanistan.
26. With reference to Ground 3, Mr Whitwell submitted that this would either stand or fall together with Ground 1. If a material error of law was found in relation to Ground 1, then the whole decision would need to be re-made. If there was no such error, Ground 3 alone disclosed no error of law.
The Appellant's Response
27. With reference to the previous determination it was noted that although at paragraph 11(3) the Adjudicator had found that the Appellant (referring to the Appellant's father) or his extended family had not experienced problems in their home area regarding the Appellant's father's membership of Hezb-e-Islami, at paragraph 9(7) the Adjudicator had found that the Appellant (the Appellant's father) was arrested and detained by the Taliban, that he escaped and left Afghanistan because of his fear of the Taliban, and that he had been a member of Hezb-e-Islami. Mr Saleem submitted that that finding should therefore have formed the starting point for the findings in the current appeal.
28. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
29. I find that Ground 1 discloses an error of law, as conceded on behalf of the Respondent. In my view the error is material which means that the decision of the FtT is unsafe and must be set aside. My reasons for reaching this conclusion are as follows.
30. The FtT described at paragraph 31 the core of the Appellant's claim for asylum was that he and members of his family were targeted by the Taliban as a result of his father's connections with Hezb-e-Islami. The Appellant's father had fled from Afghanistan because the Taliban had blamed him for the death of several members of their organisation, which put the Appellant and other family members at risk.
31. However the FtT then set out the following extract from the witness statement of the Appellant's father;
"I wish to clarify any confusion that has arisen in respect of A's asylum claim. When I came to the United Kingdom in 2000 my fear was from the Taliban, I had been arrested and detained by the Taliban in 1999 for fifteen days due to my video shop which they had destroyed in 1998. They wanted to punish me and torture me with wire cables. I managed to escape and stayed five days in hiding and then left Afghanistan."
32. The FtT at paragraph 32 found that the evidence of the Appellant's father indicated that he left Afghanistan because he had been running a video shop which meant that he was targeted by the Taliban. The FtT found there was no mention in the witness statement that he was being chased by the Taliban due to him having caused the death of several of their members.
33. The FtT is mistaken, as the Appellant's father did state in paragraph 4 that the Taliban were seeking to trace him due to his previous Hezb-e-Islami involvement, and the Taliban blamed him for the death of some of their members when he was a member of Hezb-e-Islami.
34. It is the case, as submitted by Mr Saleem, that the Appellant in his witness statement dated 23rd May 2016 made reference in paragraphs 12 and 13 to the Taliban being interested in tracing former Hezb-e-Islami members and the Taliban later discovered the Appellant's father's Hezb-e-Islami background after he had been detained running a video shop, and the Taliban wanted to trace him.
35. Therefore the primary reason for the FtT making an adverse credibility finding is because of an inconsistency in evidence, that does not in fact exist.
36. I find that the claimed inconsistency is the main reason why the credibility of the account was rejected as the FtT concluded at paragraph 32 in the following terms;
"The Tribunal does not find it credible that the Appellant's father was of any interest to the Taliban because of the inconsistency which he has provided in relation to why the Taliban would have been interested in him. The Tribunal does not find that he was of interest to the Taliban on the basis of his father having caused the death of several members of the Taliban as this contradicts with his evidence provided at his own hearing and cited above that he was targeted by the Taliban due to his ownership of a video shop."
37. It is common ground that there must be anxious scrutiny of an asylum claim. The FtT rejects the various aspects of the Appellant's account at paragraph 33 without giving adequate reasons, as in my view the FtT was very heavily influenced by the conclusion that there had been an inconsistency in the evidence.
38. I do not find that the reference to the previous determination, or the passage of time, was sufficient to undo the mistake made by finding an inconsistency that did not exist, and placing very significant weight on that.
39. The other findings in the FtT decision are, in my view, infected by the mistake in relation to the inconsistency, and therefore I conclude, because of the need for anxious scrutiny, that the decision is unsafe and must be set aside with no findings preserved.
40. Both representatives agreed at the hearing, when I reserved my decision, that if a material error of law was found, as contended in Ground 1, then it would be appropriate to remit the appeal back to the FtT to be heard again.
41. I have considered paragraph 7 of the Senior President's Practice Statements, and find that it is appropriate to remit the appeal back to the FtT because of the nature and extent of judicial fact-finding that is necessary in order for this decision to be re-made. The appeal will be heard at the Taylor House hearing centre and the parties will be advised of the time and date in due course. The appeal is to be heard by an FtT Judge other than Judge Abebrese.
Notice of Decision

The decision of the FtT involved the making of an error of law such that it is set aside. The appeal is allowed to the extent that it is remitted to the FtT with no findings of fact preserved.

Anonymity

The FtT made no anonymity direction, but as this is a claim for international protection I find it appropriate to make an anonymity order pursuant to rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008.

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 10th October 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The issue of any fee award will need to be considered by the FtT when the decision is re-made.

Signed Date 10th October 2016

Deputy Upper Tribunal Judge M A Hall