Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12390/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 1 March 2017
On 3 March 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

MORTEZA OMIDI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr U Aslam, of McGlashan MacKay, Solicitors
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The respondent’s reasons for refusing the appellant’s protection claim are in her letters dated 4 September 2015 and 17 June 2016.
2. The appellant’s grounds of appeal to the FtT were formal and generic only, identifying no specific issues for decision.
3. The FtT’s reasons for refusing the appeal are in a decision by Judge Watt, promulgated on 25 October 2016.
The grounds of appeal to the UT.
“The judge erred in law because he has not taken into account the risk the appellant would face on return on account of … attending church in the UK.
In all asylum claims the focus should be on … what might happen if sent home. An important part of this … must be what the claimant has been doing in the UK. This claimant has been attending a Christian evangelical church. No or inadequate account is taken of evidence to this effect (paragraph 18, evidence from 2 people from the church is simply noted, but no conclusion reached about what they said or wrote) notwithstanding that a crucial part of his claim is that if returned he would be perceived as a Christian and exposed to persecution. See paragraphs 32 and 33. At no point in this section is any consideration given to his attending an evangelical Christian church while in the UK …”
Submissions for appellant.
4. It was incumbent on the judge to explain what was made of the evidence of the two witnesses from the church. He failed to take account of the risk which might arise in Iran as a result of church activities in the UK. The decision contained neither explicit not implicit reasoning on these matters, and so the reader was left in real doubt why the judge decided as he did. At paragraph 18 the judge noted the evidence heard orally, including the 2 witnesses from the church. They had also provided letters. Under the heading of conclusions, the judge firstly explained why he rejected the appellant’s evidence about what happened in Iran. The appellant disagreed with these conclusions, including the conclusions drawn from medical evidence, but acknowledged that they could not be impugned for legal error. At paragraph 32 the judge turned to the evidence regarding Christianity, which gave the impression that he would then proceed to resolve the evidence from the witnesses, but nothing followed in that respect. Their evidence, if considered and accepted, might have been sufficient to establish Christian conversion. The absence of a conclusion or of any reasoning required the decision to be set aside and remade.
Submission for SSHD.
5. The evidence of the two witnesses was mentioned again at paragraph 23, as going to the appellant’s regular attendance at church in Glasgow. In effect, the evidence had been taken at its highest: it established the appellant’s overt Christian observance in the UK. The judge did not need to say any more, because it was obvious he had no reason to doubt it. This did not take the appellant anywhere, because for cogent reasons which were not open to challenge, and against which no challenge had been attempted, he had been found to be an unreliable witness, indeed a “proven liar”. He had failed to establish his claim of involvement with a house church in Iran. The judge might have made it explicit that he accepted the evidence of the witnesses from the church, but that was an omission which made no difference, because it did not affect the reasons which the appellant had not been found credible. On the hypothesis of remaking the decision, taking explicit account of the evidence of church attendance in the UK, and standing the other findings, the outcome was inevitably the same. The UT could remake it accordingly. If the case did go back to the FtT, there would be no reason to set aside the findings which were expressly stated, and no reason for it to go to another judge.
Reply for appellant.
6. If a further decision was needed, the case should be looked at by a different judge. The fact that the appellant had been found to have lied on other matters did not equate to a conclusion that he was not a genuine Christian convert. The conclusion stated at 35 did not adequately cover the case.
Discussion and conclusions.
7. There was no case developed in the FtT that attending church in the UK somehow translated, without more, into risk in Iran, and that line was not much pursued in submissions. A genuine convert and particularly one interested in evangelising would be at risk, but not someone who had carried on a sham practice.
8. On the rest of the grounds, Mr Aslam’s submission was clear, succinct and made the best of the grounds, but in my opinion failed to disclose that the making of the decision involved the making of an error on a point of law. Any deficiency is no more than formal.
9. The respondent’s submission that the appellant was a “proven liar” is unusually strong, and goes beyond mere failure to prove his case to the lower standard, which is all that is needed from the respondent’s point of view; but it is justified by the strength of the evidence that infliction of an injury in detention was invented, the injury being apparent in visa and passport photographs of earlier date (paragraphs 14, 28-29, and 34).
10. Paragraph 35 includes the sentence, “I have taken into account all the other evidence in the case but I am not satisfied that the appellant’s version of events in this case is credible”.
11. As a counsel of perfection, the reference to “all the other evidence” might have been expanded upon to say that it included the evidence of Christian observance in the UK; but there is no reason to think that was not included. That evidence had not been challenged and was indeed impeccable, so expansion would have been no more than a statement of the obvious and uncontentious.
12. As a further counsel of perfection, the reference to the appellant’s evidence not being credible might have been expanded upon to say that it included the genuineness of his Christian practice in the UK; but that would equally have been a statement of the obvious.
13. It is idle to conjecture that had the judge said anything further about the evidence of the witnesses from the church, it might have been that they persuaded him that notwithstanding his unreliability otherwise, the appellant is a genuine convert who would feel compelled to live in Iran as an observant or evangelising Christian.
14. The judge makes it clear why the outcome was as it was: the appellant for good reasons was found to be an unreliable witness, who did not persuade the judge of any of his essential contentions.
15. The determination of the First-tier Tribunal shall stand.
16. No anonymity direction has been requested or made.

2 March 2017
Upper Tribunal Judge Macleman