Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13081/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18th August 2016
On 08th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

MUSTAFA SAMADI
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Wilford, Counsel, for Tuckers, Solicitors, London
For the Respondent: Mr Melvin, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Afghanistan whose age was disputed at the date of the first-tier hearing. He appealed against the decision of the Respondent dated 4th November 2015 refusing his asylum claim, his claim on humanitarian protection issues, his human rights claim and his claim under the Immigration Rules. His appeal was heard by Judge of the First-tier Tribunal Veloso on 22nd March 2016 and was dismissed on all issues, in a decision promulgated on 8th April 2016.
2. An application for permission to appeal was lodged and permission was refused by Judge of the First-tier Tribunal Ransley on 1st June 2016. An application for permission to appeal to the Upper Tribunal was lodged and permission was granted by Upper Tribunal Judge Perkins on 20th July 2016. The permission states that the First-tier Judge gave many reasons for not believing the Appellant. One of the reasons was the failure of the Appellant to provide supporting evidence on a point of contention. The permission states that findings based on the absence of evidence need particular care but are not unlawful in principle and other credibility reasons were given but if a lack of supporting evidence is the main reason for disbelieving someone it may be that the finding as a whole is suspect. The permission states that the Upper Tribunal Judge is satisfied that the grounds raised are arguable and he states that when the decision is considered as a whole and with the benefit of submissions from both sides, these grounds may be found to be sound. The Upper Tribunal Judge stated that he is satisfied that the grounds merit a hearing.
3. There is a Rule 24 response on file from the Respondent. She submits that the Judge of the First-tier Tribunal directed herself appropriately and was entitled to come to the conclusion she did on the evidence before her. The response states that the reasoning given by the First-tier Tribunal Judge was lawful and the judge was drawing negative inferences from the lack of detail in the evidence. The response states that clear findings were made on the entire claim and reasons were given which were open to the First-tier Tribunal Judge.
The Hearing
4. I was handed written submissions by the Presenting Officer.
5. Counsel for the Appellant submitted that the evidence of Mr [M] which corroborated the Appellant's claim that he would be at risk in his home area of Afghanistan, was treated incorrectly by the judge. I was referred to paragraphs 38 and 39 of the decision which refer to his oral evidence and paragraph 44 of the decision which is the judge's treatment of his evidence. Mr [M]'s evidence is that he visited Afghanistan in 2015 and at that time was told by his uncle that the Appellant would face problems in his home area from Lieutenant Nabi, who is the Appellant's uncle. Counsel submitted that at paragraph 39 of the decision the judge states that the Appellant made no mention of Mr [M] in his witness statement, nor was he asked about Mr [M] when he was giving his oral evidence and he was not asked about his knowledge of the conversation Mr [M] had had with his uncle in the village. The judge finds Mr [M]'s evidence to lack credibility. The grounds challenge the dismissal of this evidence, finding that irrelevant considerations have been taken into account. The grounds state that it was irrational for the judge to treat this evidence in the way she did. Counsel submitted that this challenge is on the basis of fairness.
6. I was referred to the Respondent's written submissions at paragraph 8, which state that the judge found that in spite of the fact that Mr [M] returned from Afghanistan in May 2015 and visited the Appellant, there was no mention of Mr [M]'s evidence in the Appellant's witness statement and this lacked credibility. The judge found that this, combined with the fact that Counsel on behalf of the Appellant, did not seek to clarify Mr [M]'s conversation with the Appellant in oral evidence, again indicated a lack of credibility. Counsel submitted that the judge has made an assumption here, being that Mr [M], on return to the United Kingdom, immediately went to see the Appellant with this information. He submitted that there is no evidence to say when they met prior to the hearing. He submitted that there was therefore no evidential basis on which the judge could have concluded that Mr [M] and the Appellant met as soon as Mr [M] returned to the United Kingdom, a year before the hearing.
7. Counsel submitted that Mr [M]'s evidence goes to the core of the claim. He submitted that it is not sufficient to say that the judge conducted an appropriate assessment of the other evidence before her. Mr [M]'s statement corroborated the core of the account. He submitted that the judge could have raised the points she now doubts at the hearing, with the Appellant and Mr [M] who gave evidence. He submitted that had that been done and the judge had then found Mr [M] not to be credible, the situation would have been different. He submitted that this is a material error because of the relevance of Mr [M]'s evidence. The judge has denied the Appellant an opportunity to fully put his case forward.
8. I was asked to set aside the decision and remit the appeal to the First-tier Tribunal.
9. The Presenting Officer submitted that he is relying on his Rule 24 response dated 1st August 2016 and his written submissions.
10. He submitted that Upper Tribunal Judge Perkins granted permission but stated that the point raised is a moot point. Judge Perkins agrees that the judge has assessed all the facts including Mr [M]'s evidence and has made reference to Mr [M]'s letter which was dated ten months after he had been to Afghanistan and five days before the hearing and notes that the Appellant makes no mention of it in his witness statement. He submitted that if Mr [M] and the Appellant are from the same village, on return to the United Kingdom Mr [M] would have told the Appellant what he had been told and the Appellant would have referred to it in his witness statement. He submitted that it is up to the Appellant to make his case and it is not credible that Mr [M] would have waited a lengthy period before giving information relevant to this appeal to the Appellant. He submitted that in these circumstances it was open for the judge to reach the decision she did.
11. The Presenting Officer referred to the many problems which the judge had with the evidence at the hearing. At paragraph 41 of the decision she considers all the evidence. She refers to inconsistencies in the Appellant's evidence which the Appellant failed to explain. The judge pointed out that the Appellant adopted the contents of the documents and then contradicted them in his oral evidence. The judge gave little weight to the Appellant's ID document as it showed an issue date after the Appellant had left Afghanistan and she found that the other witnesses, including the Appellant's sister, gave contradictory evidence.
12. The Presenting Officer submitted that proper reasons were given by the judge in her decision and there was no unfairness. He submitted that the Appellant was not denied an opportunity to address the points which the judge found to be lacking in credibility and it was open to the judge to make the findings she did about Mr [M]'s evidence. He submitted that even if her attitude relating to that issue is an error, it is not a material error.
13. I was asked to uphold the First-tier Judge's decision dismissing the appeal.
14. Counsel submitted that it was irrational for the judge to make these findings on Mr [M]'s evidence. He submitted that the timing of Mr [M]'s statement and its length were obvious credibility points so the judge should have asked for an explanation and it was unfair that the Appellant and Mr [M] were not given an opportunity to explain.
15. The First-tier Tribunal Judge made clear findings about Mr [M]'s evidence and the fact that the Appellant did not mention Mr [M]'s trip to Afghanistan or his conversation with his uncle in his statement. At paragraph 44 she states that she did not find Mr [M]'s evidence about his conversation with his uncle to be credible. It is true that the judge could have asked the Appellant and Mr [M] about this matter but she stated in paragraph 44 that if his evidence did indeed go to the core of the Appellant's case why was there only a four line letter typed a week before the hearing from him? Why, if he was such a crucial witness did the appellant's representative not ask him and the appellant about this issue?
16. The judge refers at paragraphs 40 to 43 to other matters which she found to lack credibility. She explains why she did not give weight to the ID document and she points out the inconsistencies in various statements and the substantive interview. At paragraph 42 she finds that these inconsistencies go to the core of the Appellant's claim and she refers to the dates given by the Appellant being inconsistent and his sister giving contradictory evidence to that given by the Appellant.
17. The judge has found there to be many credibility issues. The credibility issue about Mr [M]'s meeting with his uncle and the Appellant not mentioning this in his statement is only one of them. The judge has given clear reasons for all her credibility findings. Her findings about Mr [M]'s evidence do not form a material error of law.
Notice of Decision
18. There is no material error of law in Judge of the First-tier Tribunal Veloso's decision promulgated on 8th April 2016 and her decision must stand.
19. No anonymity direction has been made.

Signed Date

Deputy Upper Tribunal Judge I A M Murray