Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13654/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 28 February 2017
On 09 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE A MONSON

Between

MA (IRAN)
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms S Alban (Solicitor, Sultan Lloyd Solicitors)
For the Respondent: Ms R Pettersen (Specialist Appeals Team)

DECISION AND REASONS

1. The Appellant appeals from the decision of the First-tier Tribunal (Judge Burns sitting at Birmingham on 21 July 2016), dismissing his appeal against the decision of the Secretary of State to refuse to recognise him as a refugee on account of his actual or imputed political opinion.
2. The First-tier Tribunal made an anonymity direction in favour of the Appellant, and I consider that it is appropriate that this direction is maintained for these proceedings in the Upper Tribunal.
The Reasons for Permission being initially refused
3. On 23 August 2016, the First-tier Tribunal Judge Hodgkinson refused the Appellant permission to appeal for the following reasons:
The Grounds raised numerous contentions challenging various adverse credibility and factual findings of the Judge, with specific reference to various paragraphs of the Judge’s decision. Having considered the Judge’s decision as a whole, in conjunction with the various and numerous specific challenges raised in the Grounds, I consider the Judge’s reasoned conclusions, first, that the Appellant is an individual whose evidence lacks credibility and, second, that the Appellant’s claimed sur place Facebook activities, which the Judge sustainably concluded had not been established in any event, would not bring him to the adverse attention of the Iranian authorities, are sustainable. Read as a whole, the Judge’s decision reveals no arguable errors of law and the Grounds, in reality, amount to no more than a disagreement with the Judge’s conclusions.
The Reasons for the eventual grant of Permission
4. On 9 December 2016, Upper Tribunal Judge Bruce granted permission to appeal for the following reasons:
(i) In the overly long and discursive Grounds, two points are made.
(ii) The first is that in reaching its credibility findings the Tribunal failed to have regard to material evidence, including objective country background material and the fact that the Appellant was a minor when he claimed asylum. Although the latter point does appear to have been considered, I consider it arguable that the Tribunal has made findings on the plausibility of the account without having had regard to the objective material before it.
(iii) The second is that in its assessment of the sur place activity (namely posting anti-government material on social media) the Tribunal has misunderstood the nature of the evidence. Given the fact that this is a claim for international protection, and having regard to the findings in AB (Internet activity - state of evidence) v SSHD [2015] UKUT 257 (IAC), I am prepared to grant permission for this point to be argued.
Relevant background facts
5. The Appellant is a national of Iran, whose accepted date of birth is 4 January 1998. He claimed to have left Iran on 5 October 2014 and to have travelled across Europe under the control of an agent. He was fingerprinted in Italy on 26 September 2014. He gave the police in Italy a different name, nationality and date of birth.
6. He is recorded as having claimed asylum in the UK on 4 November 2014, when he was served with an IS151 Notice as an illegal entrant. He was given a screening interview, and he subsequently attended an asylum interview on 14 April 2015. He claimed that he was a national of Iran of Kurdish ethnicity. As a Kurd he was discriminated against. A week after returning to his village in the period May-June 2014, he engaged in smuggling goods across the Iraq/Iran border. As a consequence of this smuggling activity, he met freedom fighters from the KDP group. In the period running from the end of July to 22 October 2014, he agreed to transport packages that KDP members told him were leaflets promoting their cause. He wanted to assist them, so he transported a package on three occasions. On the third occasion, he was stopped at a checkpoint whilst transporting a package in the car of a friend. His friend was shot, but he managed to escape. He heard from his older brother that the friend had given his name under torture, and the police were searching for him. His older brother arranged for him to leave the country, and to travel to the UK (although the Appellant did not know that this would be his final destination).
7. The Appellant’s asylum claim was refused on 10 December 2015, when the Appellant was a few weeks away from his 18th birthday. It was accepted that he was of Kurdish ethnicity. It was not accepted that he personally had problems due to his Kurdish ethnicity. It was also not accepted that he had smuggled goods across the border or that he had delivered KDP leaflets and that this had been discovered by the authorities.
8. The reasoning underpinning this rejection of this aspect of his claim included asserted inconsistencies in his account, and his lack of a credible motivation. He had also engaged in behaviour designed to mislead and conceal information, bringing himself within the scope of Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. He had initially denied in his asylum interview that he was ever encountered by any authorities on his journey to the UK, or that he was fingerprinted. Once the information about the encounter was given to his legal representatives, he changed his statement, confirming that he was fingerprinted and saying that he had given the details of another person to the police in Italy because the agent had warned him to do so. He had been in a safe environment during the substantive interview with the representative present, yet he had still lied about his encounter with the authorities in Italy.
9. It was accepted that he had exited Iran illegally. However, applying the country guidance case of SB (risk on return - illegal exit) Iran CG [2009] UKAIT 0053, it was not accepted he would be at risk if forcibly returned to Iran as a failed asylum seeker or on account of his Kurdish ethnicity.
The Hearing Before, and the Decision of, the First-tier Tribunal
10. At the hearing before the First-tier Tribunal, both parties were legally represented. The Appellant advanced a sur place claim which had not been foreshadowed by what he had said in his asylum interview.
11. The Appellant’s bundle contained posts from a Facebook account which the Appellant said was his. The earliest political posting shown in the bundle was from June 2016, although the Appellant said he had been posting political material on Facebook since October 2014.
12. It is apparent from the Record of Proceedings that Counsel asked the Appellant why there were no posts before June 2016. The Appellant answered that he had deleted them. When he posted, he deleted the post one or two or three days later. He added:
“If delete no one can see.”
13. The Judge referred to this evidence at paragraph [24] of his subsequent decision. At paragraphs [29] to [33], he set out Counsel’s closing submissions. At paragraphs [34] to [36], he set out the submissions made by Ms Alban on behalf of the Appellant. The Judge’s findings of fact were set out at paragraph [37] onwards.
14. In summary, the Judge agreed with the submissions made by Counsel for the Respondent. He found that the Appellant was generally not credible, and in particular that he had invented the account of being stopped at a checkpoint when delivering KDP leaflets.
15. It was also not credible that his brother would have known that his friend, Osman, had given his name to the authorities, because it was unlikely that the police would have volunteered this information.
16. In conclusion, he found the Appellant’s account of his claimed activity in Iran to be significantly lacking in credibility, and he found that it had been fabricated for the purposes of an asylum claim: paragraph [84].
17. The Judge addressed the issues raised by the Facebook account at considerable length, both at paragraphs [37] to [43] of his decision, and also from paragraphs [86] to [109]. At paragraph [106] he accepted Counsel’s submission that the reference to Facebook at this very late stage of the appeal process was an attempt by the Appellant to bolster his asylum claim:
Whilst the Appellant cannot be expected to alter his behaviour to avoid the risk of persecution, I do not find the Appellant has shown that he has posted anti-government comment nor would he be motivated to do so in the future. His representative submitted his motivation for doing so [was] because of his past persecution. I have not accepted the core of his account in this regard.
18. At paragraph [108] he said that, although Facebook activity carried risks - given the nature of the regime, he did not find that the Appellant had been posting on Facebook on an account in his name and that he would be traced. There was some very limited Facebook activity which was routinely deleted after a couple days. He did not accept that this would be linked to the Appellant.
19. Accordingly, he did not find the Appellant would be at real risk of persecution if returned. The Appellant was not an activist. There was no evidence he had attended demonstrations. He did not say that the authorities had attended his older brother’s home making reference to the Appellant’s Internet activity.
The Hearing in the Upper Tribunal
20. At the hearing before me to determine whether an error of law was made out, Ms Alban took me through the Grounds of Appeal which she had settled. On behalf of the Secretary of State, Ms Pettersen adhered to the Rule 24 response settled by her colleague, Mr John Parkinson. Between paragraphs [64] and [85] the Judge had provided abundant reasoning for finding that the Appellant’s account was not credible. The Judge had made sustainable findings in respect of the Appellant’s claimed Facebook account. In a very detailed analysis, the Judge had given clear reasons for concluding that the limited Facebook activity relied on in the evidence was not such to place the Appellant at risk from the authorities on return. It was plain that careful consideration had been given to the case of AB.
Discussion
Ground 1
21. At paragraph [34] of his decision, the Judge records Ms Alban as submitting that he should not find against the Appellant on Section 8 considerations because he was a minor under the control of an agent when he crossed to the United Kingdom. She also submitted that the objective evidence supported the Appellant’s case that Kurdish people were shot for smuggling goods. He was sympathetic to the Kurdish cause and therefore it was credible he was prepared to take packages for the KDP. She reminded the Judge that just because he said he was lucky in escaping from an attempted arrest at a checkpoint, it did not mean that his account was not plausible.
Whether the Judge failed to have regard to the fact that the Appellant was a minor
22. The Judge was not bound to dis-apply Section 8 because the Appellant was a minor when he was encountered by the Italian authorities in Italy, and because he remained a minor when he presented his asylum claim to the UK authorities.
23. The Judge said at paragraph [21] that he was conscious of the fact that the Appellant was only just an adult. He was satisfied he was able to fully participate in the proceedings and to give his evidence.
24. At paragraph [54] he said that the Appellant was intelligent. He also accepted the Appellant had been studying in Iran before he exited the country illegally to come to the UK.
25. At paragraph [55], he directed himself that when assessing the Appellant’s credibility, he had to take into account the fact that he was a minor when he claimed asylum and a minor at the date of decision. He directed himself that his evidence should be considered in the light of any difficulties arising due to his age, although at his screening interview in November 2014 he was almost 17 years of age, and he was not a young child.
26. When dealing with the Appellant’s concealment of the fact that he had been fingerprinted in Italy, and that he had provided the police with a different name, nationality and different date of birth, the Judge kept in mind that the Appellant had been a minor at all material times. For example at paragraph [59] the Judge said as follows:
In the screening interview he had several opportunities to give an explanation about the fingerprinting in Italy and his claim that he was not given the opportunity to claim asylum … is plainly incorrect even when I have taken into account the Appellant’s tender age.
27. Accordingly, the first limb of Ground 1 is not made out. The Judge had adequate regard to the fact that the Appellant was a minor when he claimed asylum.
Whether the Judge failed to have regard to the country background material
28. The Judge adopted a structured approach to his credibility findings which involved considering in turn each of the subparagraphs of paragraph 339L of the Rules. At paragraph [61], the Judge held that some of the Appellant’s statements ran counter to general information. Ms Alban submits that this is erroneous, as none of the Appellant’s statements runs counter to the objective evidence.
29. On analysis, the statements identified by the Judge as running counter to “general information” are few in number and they are only of peripheral relevance. The Judge has given sufficient and freestanding reasons for disbelieving the core of the Appellant’s claim, which is that he had to flee Iran because the authorities had discovered his involvement in conveying KDP leaflets - as a result of the car that he was travelling in being stopped at a checkpoint, and the friend that he was travelling with being arrested and giving his (the Appellant’s) name to the police, whereas the Appellant had managed to evade capture.
30. Where the Judge finds that a statement by the Appellant runs counter to general information and/or is inconsistent with other evidence and/or is simply not credible, he is not demonstrably wrong to do so.
31. It was open to the Judge to find that the Appellant did not fit the profile of a poor Kurdish smuggler for the reason which he gave, which was that he was able to attend college in Sardasht and he was being supported by his older brother.
32. At paragraph [69], the Judge found that the Appellant’s account of his cattle and horses being killed, but he himself not being injured, did not fit with the objective evidence that smugglers were routinely killed. According to the background evidence, another tactic employed against smugglers is to kill their cattle and horses. But it was the killing of smugglers, not the killing of their cattle and horses, which Ms Alban flagged up as being significant in her closing submissions. The finding at [69] must be seen in this context and also in the context of (a) the Appellant’s evidence that he was engaging in a smuggling operation five or six times a week and (b) the Judge’s (unchallenged) finding that smuggling is a dangerous pursuit in which smugglers are routinely shot.
33. It is the Appellant’s case that he was not a member of the KDP. At paragraph [75], the Judge observed that the Appellant said that he was too young to join the KDP but claimed he was smuggling packages for them. The Judge also found that the Appellant did not initially say that his sister was in an unstable marriage.
34. Ms Alban points out that, according to the objective evidence, it is not possible to become a member of the KDP before the age of 18.
35. It was nevertheless open to the Judge to consider that there was an inconsistency between the Appellant saying he was too young to join the KDP, while nonetheless claiming to have assisted the KDP by smuggle packages for them. Moreover, in his asylum interview the Appellant’s initial explanation for not joining the KDP included the fact that he had to remain free to look after his sister. It was only when it was pointed out to him that he had said in his witness statement that his sister was married that he came out with the explanation that his sister was in an unstable marriage, and hence she might need looking after in the future.
36. It was open to the Judge to find, as he does at the end of paragraph [75], that the only sensible inference that could be drawn from what he said Q&A 129 was that his sister was on her own. In short, it was open to the Judge to find that the Appellant had given an untruthful explanation for not joining the KDP, and that the explanation for not joining based on the needs of his sister was not credible.
37. For the reasons given above, I find that the second limb of Ground 1 is not made out. The Judge has had adequate regard to relevant country background material in reaching an adverse conclusion on the credibility of the core claim that the Appellant was sought by the authorities in Iran for assisting the KDP.
Ground 2
38. The headnote of AB reads as follows:
The material put before the Tribunal did not disclose a sufficient evidential basis for giving Country or other Guidance upon what, reliably, can be expected in terms of reception in Iran for those returning otherwise than with a “regular” passport in relation to whom interest may be excited from the authorities into internet activity as might be revealed by an examination of blogging activity or a Facebook account.
39. At paragraph [453], the Tribunal accepted that some monitoring of activities outside Iran is possible and that it occurs. But they were not able to say what circumstances, if any, enhanced or diluted that risk. At paragraph [460], the Tribunal said:
Overall, it is very difficult to make any sensible findings about anything that converts a technical possibility of something being discovered into a real risk of it being discovered…We find that our main concern is the pinch point of return.
40. At paragraph [461], the Tribunal held that the more active the person has been on the internet, the more likely the authorities would become interested and pursue their investigations at the pinch point of return.
41. At paragraph [467] the Tribunal said:
The mere fact that he has been in the United Kingdom for a prolonged period does not lead to persecution. However, it may lead to scrutiny and there is clear evidence that some people are asked about their internet activity and in particular for their Facebook password. The act of returning someone creates a “pinch point” so the person is brought into direct contact with the authorities in Iran who have both the time and inclination to interrogate them. We think it likely they will be asked about their internet activity and likely if they have any internet activity for that to be exposed, and if it is less than flattering of the Government to lead to at the very least a real risk of persecution.
42. I do not consider that the Judge failed to apply AB correctly or that he misunderstood the nature of the evidence. The problem which arose for the Appellant at the hearing was that there was a fundamental mismatch between the documentary evidence of Facebook activity disclosed in the Appellant’s bundle and what he said in his oral evidence about his claimed Facebook activity since arriving in the United Kingdom in October 2014.
43. His explanation for there being no posts featuring an anti-government message prior to June 2016 was that he routinely deleted such posts within one or two or three days of them being uploaded. But this was not the pattern of activity shown in the printouts, where the earliest post from June 2016 was still available a month later.
44. The Judge noted that the address given on the Facebook account did not correspond to the Appellant’s name, albeit that his surname was part of the name of the Facebook account holder.
45. At paragraph [87], the Judge said that he found the Appellant’s evidence to be unhelpful and vague with regard to the Facebook account. At paragraph [89], he said that during the hearing whenever the Appellant was asked questions about that account, he asked to see the bundle. While it was reasonable to refer to documents, the Appellant gave him the clear impression that he was unsure about the contents of the account. His evidence was very hesitant “only in this regard”.
46. His evidence that he posted on the account and deleted after one, two or three days was not borne out by some of the older postings which had clearly not been deleted within that timeframe. There was no evidence when the account was opened, and the account was not opened in the Appellant’s name, the Judge found.
47. Accordingly, it was open to the Judge to accept the submission of Counsel for the Respondent that it was possible for somebody to open an account in somebody else’s name and to make posts:
I have found his evidence to be lacking in credibility and it was clear from [MA’s] evidence that he was unfamiliar with this [Facebook] account. It is quite possible that other people have posted all the contents of the account in his name.
48. Ms Alban submits that this finding is perverse as the Appellant had to be in possession of the password of the Facebook account so as to enable her firm to review the material and download it. But the fact that the Appellant knows the password to the account is not inconsistent with the proposition that a friend of his is operating the account on his behalf to bolster his asylum claim.
49. In any event, it was only a subsidiary submission of Counsel that the Facebook account was not being operated by the Appellant. Counsel’s primary submission, which the Judge also accepted, was that the evidence of Facebook activity had been generated in bad faith in order to bolster a weak asylum claim. On this hypothesis, it does not ultimately matter whether the account is to treated as being in the Appellant’s name or in someone else’s name (with references to the Appellant’s name appearing on it).
50. The clear finding by the Judge that the Appellant is not an anti-government activist, that he has not himself posted anti-government comments in the past, and nor would he be motivated to do so in the future, provides a solid foundation for the conclusion that the Appellant would not be at risk on return either on account of the limited Facebook activity disclosed in the Appellant’s bundle or on account of his Facebook account being checked at the pinch point of return.
51. In her closing submissions before the First-tier Tribunal, Ms Alban relied on the fact that on page 11 of the account there was a photograph of the Appellant, and on the fact that he had 2,222 friends, all of whom who could see his account and who could have shared his posts before he deleted them.
52. Nonetheless, looking at the matter through the prism of AB, it was open to the Judge to find that there were not substantial grounds for believing that the Appellant had thereby come to the adverse attention of the Iranian authorities. On the disclosed evidence, he was not himself a political blogger: he had only been passing on, with the occasional comment, material which had been generated by other people. Moreover, he had only been doing this for about a month.
53. Looking forwards to the pinch point of return, the fact that the Appellant was not a genuine political activist meant that he would delete his current postings (if there were any still there at the date of the hearing, which was questionable given his claimed practice of rapid deletion); and he would not thereafter post new anti-government material, as he did not have a genuine political motivation for doing so. So if his Facebook account was checked on return, there would be no political postings on it. The Iranian authorities would not find anything on his Facebook account which was less than flattering of the Iranian government.
54. Thus there is no error in the law in the Judge reaching the conclusion that the Appellant would not be at risk at the pinch point of return.

Notice of Decision
55. The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.

Direction Regarding Anonymity – 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
Deputy Upper Tribunal Judge Monson