Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12779/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 21 December 2016
On 3rd January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

M N
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:

For the Appellant: Ms I Sabic (counsel) instructed by Duncan Lewis, solicitors
For the Respondent: Mr P Nath, Senior Home Office Presenting Officer
DECISION AND REASONS
1. I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant, preserving the anonymity order made by the First-tier Tribunal.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Hembrough promulgated on 10 October 2016, which dismissed the Appellant's appeal on all grounds.

Background

3. The Appellant was born on 21 March 1957 and is a national of Iran.

4. On 30 September 2015 the Secretary of State refused the Appellant's application for asylum.

The Judge's Decision

5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Hembrough ("the Judge") dismissed the appeal against the Respondent's decision. Grounds of appeal were lodged and on 28 November 2016 Resident Judge Phillips gave permission to appeal stating inter alia

3. This is a detailed and carefully considered decision and I can see little if any merit in the assertions that the Judge failed to take make adequate findings in respect of risk on return or that he failed to follow relevant case law and guidance. As to the former the suggestion that having made a finding in relation to the Appellant's alcohol consumption, a matter that was not claimed would cause risk on return, the Judge should nevertheless have considered risk on return for this reason has no clear basis in law. So far as relevant case law is concerned the Judge did not believe the core of the Appellant's account and given this fact he believed some bits is hardly relevant.

4. However, there is arguable merit in the other asserted grounds. In his detailed decision, it is arguable that the Judge has speculated and made findings on matters that were not before him in evidence seeking to ascertain the reasons why the Appellant came to the United Kingdom and made what the Judge considered to be a false claim for asylum. It is arguable that these speculative findings on the reasons why the Appellant made a false claim have infected the Judge's decision in respect of the actual claim.

The Hearing

6. (a) Ms Sabic, for the appellant, moved the grounds of appeal. She reminded me that the appellant's claim is that he has a well-founded fear of persecution because of his imputed political opinion. She told me that the foundation for his claim is that his ex-wife came to the UK and was granted asylum because she claimed that she had converted to Christianity and that she had a fear of the Iranian regime because of her political activities as an advocate for women's rights. She told me that the Judge failed to make adequate findings in relation to the appellant's wife's successful claim for asylum. She took me to the second sentence of [68] of the decision & the first sentence of [70], where the Judge states that he cannot make any findings about whether or not the appellant's ex-wife was engaged in political activity in Iran.
(b) Ms Sabic told me that the appellants wife's claim is the foundation for the appellant's claim to have been arrested and mistreated in Iran, so that the failure to make any findings in relation to the appellant's ex-wife's political profile in the eyes of the Iranian regime is a fundamental failing and so a material error of law.

(c) Ms Sabic took me to [65] and [67] where, she told me, the Judge manifestly proceeds on assumptions, speculating about the reasons for the irretrievable breakdown of the appellant's marriage and the terms of financial settlement on divorce. She urged me to set the decision aside and to remit the case to the First-tier tribunal to consider of new.

7. Mr Nath, for the respondent, told me that the determinative issue in this case was credibility, and that is something which the Judge decided after considering each strand of evidence. He says that, in reality, the Judge narrates that there is no evidence of the appellant's ex-wife's political activities in Iran, and that it was correct for the Judge to record the lack of evidence when considering whether or not the burden of proof has been discharged. He told me that the decision is a well-reasoned decision which does not contain errors, material or otherwise. He urged me to dismiss the appeal and allow the Judge's decision to stand.

Analysis

8. The appellant participated in a screening interview on 3 January 2015. When he was asked to briefly explain why he could not return to Iran, he said that he feared the Iranian regime who had arrested him a number of times. He said nothing about his wife's political profile. During that interview, when he was asked about his marital status, he said that his ex-wife has lied about her reasons for separately claiming asylum.

9. On 1 June 2015 the appellant participated in substantive asylum interview. In that interview he departed from the account he gave at screening interview and said that he has drawn the adverse attention of the Iranian authorities because his wife was granted asylum in the UK. In that interview he cannot name a political party his wife is affiliated with, and can only say that she actively campaigned for women's rights.

10. Before the First-tier, the appellant adopted his witness statement dated 15 September 2016 as his evidence in chief. At paragraph 32 of that statement he says

I was not aware of my wife's activities since she was hiding her activities from me, because I was not interested and did not want to be in trouble with the authorities. I was not a political person and nor was my wife. She was dragged into this by her friends.

11. The appellant says at paragraph 33 of his witness statement

I explained throughout my interview that I did not know about the details of my wife's activities. When I was not at home and was at work which normally took one or two weeks, she had been organising meetings and gatherings with her friends. I do not have any evidence of this. Even if I had I would not have been able to bring them with me from Iran.

12. Each of those three sources of evidence indicate that the appellant can give no specific detail of his wife's political activity. It is not surprising that the Judge records that he cannot make findings on whether or not the appellant's ex-wife has a political profile. It is beyond dispute that the appellant's ex-wife was granted asylum, but the Judge was correct, on the evidence presented, to go no further than to find that asylum had been granted.

13. The reason for the grant of asylum might be one of the cornerstones of the appellant's case, but it is clear from the appellant's bundle placed before the First-tier and from the evidence recorded by the Judge in his decision that the appellant did not produce reliable evidence of the reason for the grant of asylum. The appellant concedes at paragraph 33 of his witness statement

I do not have any evidence of this.

14. Between [6] and [16] of the decision the Judge sets out the detail of the appellant's claim for asylum. Between [17] and [19] he summarises the respondent's reasons for refusal. Between [28] and [61] he summarises the evidence and submissions, before commencing his findings of fact that [62].

15. At [63] the Judge identifies that this is a case that turns on credibility, and then proceeds to address credibility.

16. It is true that the language used by the Judge in the first sentence of [65] and the last sentence of [67] talks of suspicion & possibility. Removal of those two sentences makes no difference to the conclusion reached.

17. The thrust of the appellant's appeal is that the was a failure by the Judge to grapple with the central issue. There is no merit in that criticism. As I have already indicated, the Judge considered the evidence, and found that there was insufficient evidence to identify the reason the appellant's ex-wife's application for asylum was successful. That was not the end of the Judge's consideration of the central issues in this case. In the first sentence of [71] the Judge considers whether the appellant's ex-wife was or was not engaged in political activity.

18. The Judge provides adequate reasons for finding that the appellant is neither a credible nor a reliable witness. The Judge correctly adopts a neutral stance in relation to the appellant's ex-wife's political activities and the reason she has been granted asylum in the UK. As the appellant's evidence is that he does not have any specific detail about his ex-wife's activities, there was no other conclusion open to the Judge. The Judge reaches his findings of fact based on the evidence rehearsed before him. The Judge then takes correct guidance in law before reaching conclusions which were well within the range of reasonable conclusions available to the Judge.

19. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) 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; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

20. There is nothing wrong with the Judge's fact finding exercise. In reality the appellant's appeal amounts to little more than a disagreement with the way the Judge has applied the facts as he found them to be. The appellant might not like the conclusion that the Judge has come to, but that conclusion is the result of the correctly applied legal equation. There is nothing wrong with the Judge's fact finding exercise. The correct test in law has been applied. The decision does not contain a material error of law.
21. The Judge's decision, when read as a whole, sets out findings that are sustainable and sufficiently detailed and based on cogent reasoning.
CONCLUSION
22. No errors of law have been established. The Judge's decision stands.
DECISION
23. The appeal is dismissed. The decision of the First-tier Tribunal promulgated on 10 October 2016 stands.

Signed Date 23 December 2016
Deputy Upper Tribunal Judge Doyle