Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA071102015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 25th May 2016
On: 16th June 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

GHS
(Anonymity direction made)
Appellants
and

Secretary of State for the Home Department
Respondent

For the Appellant: Mr Jagadesham, Counsel instructed by Wilson Solicitors LLP
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Pakistan born in 1990. He appeals with permission1 the decision of the First-tier Tribunal (Judge Malik) to dismiss his appeal against a decision to refuse him international protection.

2. It is the Appellant's case that he has a well-founded fear of persecution in Pakistan for reasons of his imputed political opinion. He is from Karachi. He states that since approximately 2011 he has been involved in charity work in Pakistan, first in distributing educational materials in villages in Sindh, and latterly in Afghan refugee camps on the outskirts of the city. The Appellant claims that in June 2014 he received threats from the Pakistani Taliban who were opposed to his efforts to spread education, and specifically to his distribution of educational materials that were perceived as "western". The threat was at first made by telephone; he subsequently received a 'night letter'. The Appellant claims that on the 28th August 2014 he was travelling in a car with a friend when they were fired on by masked men. The Appellant was 100% sure that the attackers were from the Taliban. The Appellant moved to another city, Lardkana. The Appellant claims that on the 6th March 2015 four armed men came to where he was staying and asked for him. The Appellant managed to escape. He tried to obtain police protection on a number of occasions but each time they wanted him to pay: he was not working and could not do so. The Appellant notes that three days prior to the incident in March 2015 a police officer had come to his house and asked to borrow money. The Appellant had refused and the officer said that he would not be able to protect him. After that incident the Appellant left Pakistan, came to the UK and claimed asylum. He produced various documents in support of his claim including a 'First Information Report' (FIR) purportedly issued by the police in Pakistan.

3. In a letter dated 17th April 2015 the Respondent rejected the claim. She did not accept that any of the account was true. It was not accepted that the Appellant was at risk from the Taliban. If he was being threatened, the Pakistani state could provide a sufficiency of protection and/or it was open to the Appellant to live somewhere else in Pakistan.

4. By the time that the matter came before the First-tier Tribunal the evidence had developed. The Respondent relied upon three 'Document Verification Reports' (DVRs) which alleged that documents adduced by the Appellant were not genuine. In each case an officer from the British Embassy in Abu Dhabi had made checks including contacting the purported author of the document, and in each case they had been informed that the document did not emanate from the claimed source. This was a matter that plainly weighed against the Appellant: paragraph 9 (i-ii). The Tribunal took account of the Appellant's oral evidence and the remaining documents. His claims to have worked in the charity sector and to have been targeted as a result are rejected as not credible. The appeal is accordingly dismissed.

The Grounds of Appeal

5. The Appellant now has permission to appeal on the following grounds:
i) The First-tier Tribunal failed to have regard to material evidence
The Appellant had relied on witness statements from five individuals who were still in Pakistan. These statements had been prepared over the telephone by the Appellant's solicitor with the assistance of an interpreter both of whom had sworn and signed the documents. At paragraph 3 the determination records the existence of these statements and the Tribunal records "I attached little weight to them as they were unsigned and the witnesses did not attend the hearing". The Appellant submits that in fact the Tribunal appears to have attached no weight at all to this evidence, since it does not feature in the reasoning. This is submitted to be an error of law. The evidence of five witnesses cannot be dismissed in its entirety without good reason.
ii) There was an unfairness/procedural irregularity in matters being taken against the Appellant which had not been put to him
The Appellant had relied on a receipt purportedly issued by a donor as evidence of his charitable activities. This had been rejected by the Tribunal on the grounds that there was no explanation given as to why the receipt had been issued. The Appellant submits that this is unfair: had the matter been put to him he could have explained that such receipts are issued for tax purposes
iii) Failure to give reasons/ making assumptions unsupported by evidence
The Tribunal had found it to be "incredible" that the Taliban would threaten the Appellant instead of killing him or attempting to do so. It is submitted that describing something as "incredible" is a finding, not a reason. In this case there was country background material which showed that the Taliban frequently threaten people; since that was their modus operandi there was nothing "incredible" or "inherently unlikely" in them having done so in this case
iv) Flawed assessment on risk infecting whole determination
The Appellant acknowledges that the appeal was dismissed on internal flight grounds but points out that this was predicated on the flawed risk assessment. There was no assessment of the individual facts as they relate to the Appellant.

The Response

6. For the Respondent Mr Harrison accepted that the First-tier Tribunal did not appear to have read or considered the witness statements from the five witnesses in Pakistan. Although these documents are recorded as forming part of the Appellant's case, and that there was no doubt a limit that could be attached to such untested evidence, Mr Harrison conceded that it must be a material error for the determination to have omitted to consider these documents altogether. That was particularly so where the Tribunal appears to have drawn adverse inference from the lack of supporting evidence from individuals in Pakistan.

7. Mr Harrison was further prepared to acknowledge that a number of aspects of the evidence had been described as "incredible" or "implausible" without those findings being adequately reasoned. Although Mr Harrison submitted that this was an appeal that the First-tier Tribunal was entitled to dismiss, given the evidence and the use of false documentation, he accepted that this was not an inevitability and that grounds (i) and (iii) had been made out.

8. Given the concession of the Respondent I do not think it necessary to address grounds (ii) or (iv). That is because the errors identified, in particular the failure to analyse or consider the witness statements, was material in the context of an asylum claim where those statements spoke directly to the matters in issue. For that reason I am satisfied that the determination must be set aside.

Decisions

9. The determination of the First-tier Tribunal contains an error of law and it is set aside.

10. The decision is to be re-made in the First-tier Tribunal.

11. Having regard to the nature of the evidence I make the following direction for anonymity, pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders.

"Unless and until a tribunal or court directs otherwise, the Appellants are 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".

Upper Tribunal Judge Bruce
10th June 2016