Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13686/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 24th April 2017
On 25th April 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

M.A.
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Loughran and Co, Solicitors.
For the Respondent: Mr. Mullen, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. The appellant was arrested by police on 20th December 2013 on suspicion of being in the country illegally. He then claimed protection.

2. His claim is that he was born in Saudi Arabia and is a national of Chad through his parents. He said he would be at risk if returned to Chad. He said he lived in Saudi Arabia until he was 24.Frustrated by the discrimination he experienced there and his brother’s death a number of year earlier he returned to Chad along with his wife and their infant son.

3. He had obtained travel documentation for the journey from the Chad Embassy in Saudi Arabia. He was only in Chad several days when he was detained by the authorities who believed he was a spy taking information to the opposition.

4. He said he was detained and abused over an extended period. Ultimately he was hospitalised, his father paid a bribe, and he was able to leave. Meantime, his wife and son had returned to Saudi Arabia.

5. He left Chad and travelled to Libya where he remained for a number of years. He then travelled to Italy where he remained for a period and travelled then moved on to France before travelling to the United Kingdom.

6. The respondent carried out checks and discovered that he had claimed protection in Italy and had also been encountered by the authorities in France. Italy was prepared to accept him under the Dublin Convention provisions and removal directions were set. However, his representatives brought a judicial review resulting those directions being cancelled. Ultimately, the judicial review of the removal was dismissed but by that stage he could not be returned.

7. The respondent refused his claim on the merits in December 2015. The respondent accepted that he was from Chad but did not accept he had been living in Saudi Arabia until he was 24 or that he encountered the difficulties he claimed. Various discrepancies in his claim were highlighted. He also displayed knowledge of Chad which was inconsistent with only a short period he claimed to have spent at liberty there.

The First tier Tribunal

8. His appeal was heard by First-tier Judge Paul in Glasgow in November 2016 and was dismissed. The judge recorded the inconsistencies as to the length of the period of detention in Chad, varying from several months to several years. No evidence had been provided to confirm he had lived in Saudi Arabia. In the course of the hearing he was asked why he had decided to go to Chad in 2004. He was also asked how his father was able to arrange for him to be released from custody.

9. Medical evidence was submitted from a Consultant in emergency medicine in Glasgow in relation to the appellant's physical injuries. The appellant had indicated he suffered from alcohol addiction and had be in a road traffic incident whilst under the influence fairly recently.

10. The judge dealt with the medical evidence at paragraph 32 of the decision. The judge commented that the date when the relevant scarring occurred had not been identified. The judge commented that the appellant had led a peripatetic and difficult life in recent years associated with his alcohol addiction. The judge concluded that in all probability he had experienced ill-treatment at some stage but from who was not clear. The judge said that the medical evidence provided acknowledge that the injuries could have been caused by events other than torture as claimed. The judge did not accept they happened in Chad in 2004 as claimed.

11. The judge did not find the claim credible and found it had not been demonstrated he had either lived in Saudi Arabia been detained in Chad.

The Upper Tribunal

12. Permission to appeal was granted on the basis it was arguable the judge materially erred in law, particularly in relation to the assessment of the appellant’s credibility and the treatment of the medical evidence.

13. The respondent has lodged a rule 24 response opposing the appeal. The judge-highlighted credibility as central to the appeal and gave reasons why he did not believe the appellant's account, particularly as set out in paragraphs 28 to 31 of the decision. The finding that the appellant's injuries were caused by ill-treatment but not as claimed was a finding open to the judge. It was submitted that the grounds advanced were a mere disagreement with the findings of the tribunal.

14. Ms McCrorie appeared for the appellant and relied upon the grounds advanced when leave was sought. The grounds are lengthy and overlap. The first ground is that the judge applied the wrong burden and standard of proof. Reference was made to paragraph 28 where the judge stated`the appellant's case in relation to how he came to be in Chad in 2004, begs more questions than it answers.’ In the refusal the respondent had question whether the appellant ever lived in Saudi Arabia and the absence of any explanation as to why, on his account at the age of 24 he decided to move. I do not see this comment as related to burden or standard of proof. Instead, it is simply a statement. The judge refers to the relevant standard of proof at paragraph 26 so clearly the judge was aware of this.

15. It was contended that the judge failed to detail what evidence accepted and rejected. Reference was again made to paragraph 28 and the mention of his brother being killed as a factor in his move to Chad. There was reference to the decision of Kocha –v-SSHD [2005] CSIH 41 and it was contended that the judge should have put questions to the appellant in the course of the hearing in relation to any gaps. However, as Mr Mullan points out the appellant was represented and there is a danger of judge intervening excessively and the suggestion of bias being made. He provided he was a copy of the decision from the Inner House, HA and TD [2010 CSIH 28 which mentions Kocha –v-SSHD [2005] CSIH 41 and the fact that the appellant there was unrepresented. I find the judge did address the core issues and made clear findings, principally of disbelief.

16. The judge’s treatment of the medical evidence was challenged. It was contended that the judge erred in law by placing weight on the fact that alternative explanations for the injuries were given. It was submitted that such alternatives were in line with the Istanbul protocol. I fail to see how it could be suggested the judge’s comments at paragraph 32 and 33 could amount to an error of law. The judge made the point that the date of the scarring could not be given and the appellant’s evidence was that he had alcohol problems which in turn led him into conflict.

17. I have considered the other grounds raised but do not find they reveal any material error. Rather, they amount to a disagreement on the findings which were legitimately open to the judge.

18. The credibility of the account was central. The points at issue were highlighted in the refusal letter. The judge address these based upon the evidence presented on appeal. I considered the comments made at paragraphs 28 to 34 justify the conclusion reached and I do not see any material error disclosed.

Decision

No material error of law has been demonstrated in the decision of First-tier Judge. Consequently, that decision dismissing the appeal shall stand.

Deputy Judge Farrelly

24th April 2017