Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00018/2016

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 10 January 2017
On 24 January 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

nsk
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr C Lane, instructed by Migrant Legal Project
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court proceedings.
Background
2. The appellant is a Sikh and citizen of Afghanistan who was born on 1 January 1974. He arrived in the United Kingdom with his wife and children on 20 August 2015 and claimed asylum. On 16 December 2015, the Secretary of State refused the appellant's claims for asylum, humanitarian protection and Art 8 of the ECHR.
3. The appellant appealed to the First-tier Tribunal. In a determination sent on 27 July 2016, Judge Page dismissed the appellant's appeal on all grounds.
4. The appellant sought permission to appeal. Permission was initially refused by the First-tier Tribunal but on 21 September 2016 the Upper Tribunal (UTJ Kopieczek) granted the appellant permission to appeal.
5. On 30 September 2016, the Secretary of State filed a rule 24 notice seeking to uphold the judge's decision.
The Appellant's Claim
6. The appellant claims that he worked in a market in Kabul as a money changer. He began the business in 2001 with the help of his father. He worked exchanging US dollars and Afghan currency. In July 2015, five men (whom he knew) came to his house and said that they were working for "Jihad". They told the appellant that they wanted all his money, his house and land. They told him to change his faith to Islam and that they would find another wife for him. They gave him a week to "get everything together". They said they would decapitate his children and that they would kill him and his wife if he did not do as they asked.
7. The appellant returned to work in the market and after a few days he collected 50,000 US dollars from the bigger money changing shops who looked after it for him. He went to the Gurdwara and told them what had happened and they helped him to leave by introducing him to an agent. The appellant and his family left Afghanistan before the seven days he had been given passed. He did not report the matter to the police because they are "not very good". With the aid of an agent, the appellant and his family travelled from Kabul to Pakistan and then, following a number of airplane flights, arrived in the UK and claimed asylum.
The Judge's Decision
8. Judge Page rejected the appellant's account. Although he accepted that the appellant and his family were Sikhs from Afghanistan, he did not accept that the appellant had been the subject of extortion by five Jihadists as he claimed. In any event, the appellant could internally relocate within Kabul. Further, as a returning Sikh, whilst the appellant and his family might face difficulties, their circumstances on return did not amount to persecution or serious ill-treatment.
9. In support of his claim, the appellant relied upon a report provided by Dr Antonio Giustozzi, a recognised expert in respect of the region. That report in fact consisted of a report-back by a researcher whom Dr Giustozzi asked to make enquiries both at the market where the appellant claimed to work and also from "AS", a leader of the Sikh community in Afghanistan and who lived in Kabul.
10. As a result of those enquiries, Dr Giustozzi reported that:
"7. The traders in Shahzada remembered [the appellant] as the owner of a money changer shop there, but were not aware of what drove him away.
8. [AS] indicated that he remembered [the appellant] as the owner of a money changer shop and as the victim of extortion. [The appellant] was threatened by a group of people and was forced to pay them money: he reported the fact to [AS]."
11. Judge Page dealt with Dr Giustozzi's evidence in paras 18-19 as follows:
"18. The appellant, through his representatives, have instructed Dr Antonio Giustozzi, to seek confirmation as to whether the facts related to them by the appellant could be confirmed by local sources or not. Dr Giustozzi is an expert on Afghanistan with many sources available to him in Afghanistan. He forwarded the details of the appellant's old address in Kabul to these sources, to a researcher called [SN], a journalist based in Kabul. [SN] sought to confirm the authenticity, or otherwise, of the appellant's claim with regard to the threats and extortion to which he claimed he was a victim. For this purpose [SN] visited Shahzada Market and enquired with local traders about the appellant. The traders in Shahzada remembered the appellant 'as the owner of a money changers shop there', but were not aware of what the appellant said had driven him away. However, another person there called [AS] indicated to this journalist that he remembered the appellant as the owner of a money changer shop and as 'the victim of extortion'. He said the appellant was threatened by a group of people and was forced to pay the money, something he reported to [AS].
19. In the appellant's witness statement, however, at paragraph 24 the appellant said that he did not tell people in the market what had happened because he thought that if he told people what had happened it would make the situation worse. It was the appellant's evidence that he did not actually pay any money to these people and he was told that he had to. It was also the appellant's evidence that he did not have a shop. His father had a shop but he had to shut because of security problems and the appellant started his business in 2011, working from a desk in the market not a shop. This report does not, in my judgment, amount to expertise. It has been relied on as an 'expert report' but it is only a record of what Dr Giustozzi's enquiry of this journalist revealed. I do not doubt that Dr Giustozzi is a renowned expert on Afghanistan, or that he has this contact. If [AS], who apparently is the leader of the Sikh community in Afghanistan and resident in Kabul on 5 April 2016, had detailed knowledge of the appellant's claimed problems there it is curious that he has not reported that it was necessary for the appellant to flee Afghanistan. There is renowned lawlessness in Afghanistan and it must be inevitable those with 'money changer shops' be at risk of criminals seeking to extort money from them. This evidence is not expertise. Neither is it conclusive evidence that the events that the appellant claimed actually happened to him and not his father, who did have a shop and suffered problems according to the appellant's witness statement. I am asked by Counsel for the appellant to give significant weight to the sources in Kabul that Dr Giustozzi has used. I take this evidence as my starting point in assessing credibility. After considering all of the evidence of the appellant, his asylum interview records and the submissions made by Counsel of the appellant Mr Lane, I reach the following conclusions."
12. At para 20, the judge set out a perfectly proper self-direction as to the standard and burden of proof. Then, at paras 21-22 the judge identified a number of aspects of the appellant's account which led him to make an adverse finding as follows:
"21. The appellant's story did not have the ring of truth to it. According to the objective evidence in the appellant's bundle at page B50, 36% of the population of Afghanistan earned below 25 US dollars per month. The appellant has claimed after ceasing to work in his father's currency exchange shop and starting on his own in a desk in the market he managed to accumulate over four years the sum of 50,000 US dollars in cash, a sum accumulated and held with four currency traders who held this money for him as a favour charging him nothing for the service. The 50,000 US dollars that the appellant claimed to have accumulated was used to bring his family to the United Kingdom, accumulated after the appellant had been able to meet all of his household expenses. This amount would be the equivalent of 1,041 US dollars per month over the four year period that the appellant claimed to have been in business in this way. Yet having accessed all of this money in such an open place the appellant experienced no problems, he said, until these five men that he worked with came to his house to tell him that his money and his home was to be forfeit in these claimed circumstances. The appellant had no previous problems with these five men, all of whom were known to him. I do not find it credible that this incident would have happened with such spontaneity and the appellant given a week to meet their demands. The appellant did not report this to the police or seek the protection of any agency. On his account he lived normally for the next few days going to the market each day, collecting the 50,000 dollars that he was owed, living at home throughout, before leaving for Pakistan. I do not find it credible that the appellant would have been able to leave 50,000 US dollars with four people, using them as a bank, with nothing required in return.
22. The incident when the five men were alleged to have entered his home in mid-July 2015 to demand that he gave them all of his money and his house was not credible because the appellant knew who these people were, because he had worked with them. Yet on the appellant's account three of the men covered their faces for some unknown reason. It is not credible that three of these five people that he knew would have covered their faces. These five men, according to the appellant's asylum interview, worked with him for two years in the money exchange in Sherzad Market. Their behaviour before this incident caused the appellant no concern, it is not credible that they would have behaved in this spontaneous way, demanding money for Jihad, promising the appellant that if he converted to Islam they would give him a new wife and wives for his children. It is not credible they then gave him a week to consider his answer. A week that facilitated his preparations to leave the country. I can safely discount any possibility of this having happened in this way. The appellant could not make up his mind during his asylum interview whether he had left Afghanistan fifteen-twenty days after the incident or three-four days later. In any event he had no problems, on the basis of this story, in Afghanistan immediately before he left when he was living at home and going to the market each day."
13. Judge Page, accordingly, dismissed the appeal on asylum grounds.
Discussion
14. Mr Lane, who represented the appellant relied upon the grounds of appeal which challenged the judge's approach to the evidence in paras 18-19 and then in paras 21-22.
Paras 18-19
15. First, Mr Lane submitted that the judge had failed to give positive weight to Dr Giustozzi's evidence, even though it was not his expert opinion, but rather evidence reported through his reliable researcher in Kabul. Mr Lane submitted that Dr Giustozzi's researcher was independent and that, despite any minor inconsistencies, the report was supportive of the appellant's claim and the judge, in stating that he took it as his "starting point in assessing credibility", had then failed to do so.
16. Secondly, he submitted that Judge Page had wrongly identified an inconsistency between the evidence of AS and the appellant when concluding that, although the appellant claimed not to have told anyone in the market what had happened, AS was aware that the appellant had been threatened. Mr Lane submitted that AS was not from the market but rather the Gurdwara whom the appellant had told about his problems. Further, Mr Lane submitted that the fact that AS was not said to have acknowledged that the appellant had fled was based on an assumption that he had a detailed knowledge of the appellant's circumstances.
17. Thirdly, the judge had been wrong to rely on a semantic point that the appellant had claimed to work from a "desk" in the market whilst AS was reported to say that he had a money changer "shop". Mr Lane pointed out that in his witness statement at paras 11-17 (at A2-A3 of the bundle) the appellant referred to his "shop". As regards the discrepancy between the appellant's account that he had not paid any money and AS's reported evidence that the appellant had been "forced to pay them the money" that was a minor inconsistency.
18. I do not accept Mr Lane's submissions.
19. Although Dr Giustozzi is an expert, his report does not, as Mr Lane acknowledged, contain expert opinion in support of the appellant's claim. Instead, it contains a third-party's report of his investigations. The judge clearly recognised that in para 19 of his determination. Subject to its reliability, such evidence is relevant but it is a matter for the judge as to what weight to place upon it given the circumstances in which it was obtained. Here, it is clear to me that the judge did give the evidence proper consideration in assessing the credibility of the appellant's claim. The evidence was, however, not wholly consistent with the appellant's claim. In particular, as the judge pointed out, AS reported that the appellant had told him that he had been forced to pay money to the five men. That was not the appellant's claim. His claim was that he did not pay them the money and used it in order to travel to the UK. Further, AS's evidence did not support the appellant's claim in two material respects. It made no reference to the fact that the appellant had been threatened by Jihadists and told to convert from his Sikh religion. Also, it made no reference to the fact that the appellant had been forced to flee Afghanistan as a result of the threats. Mr Lane submitted that the judge should not have taken any omission in AS's evidence into account as it was based on an assumption that AS had a detailed knowledge. However, the appellant's own case was that he went to the Gurdwara - and AS is a leader of the Sikh community in Afghanistan based in Kabul - and he told them what had happened and that they had helped him to leave by introducing him to an agent (see para 25 of his witness statement). The judge was, in my view, entitled to take into account, in assessing what weight to give to the evidence from AS, that omission. The evidence was further undermined by the failure of AS (a religious leader) to refer to what was, after all, a core part of the appellant's claim that he was subject to threats from religious extremists seeking his conversion to Islam.
20. Whilst the appellant had referred to his having a "shop" in the market, he also referred to the fact, in his oral evidence, that he was working from a "desk" in the market. There was, in my judgment, an internal discrepancy in the appellant's own evidence and also between it and that of AS. The discrepancy cannot be wholly explained away simply as a "semantic" point. Reading the appellant's witness statement when he refers to his having a "shop", he refers to the "bigger shops" near the market from whom he obtained daily rates of exchange and some of whom held his money. There is no suggestion that the "bigger shops" were based in the market at "desks". On the basis of the evidence, the judge was entitled to view the appellant's evidence as containing an internal discrepancy and also being discrepant of that of AS.
21. Overall, the judge's assessment of Dr Giustozzi's evidence was, in my judgment, entirely fair and balanced even if the judge overlooked the fact that AS was not a person at the market when the judge took into account that the appellant had said he had not told anyone in the market what had happened. I do not accept Mr Lane's submission that the judge fails to give proper weight to Dr Giustozzi's evidence. He clearly did not disregard it but, as he said, took it into account as his "starting point" in assessing credibility.
Paras 21-22
22. In respect of paras 21-22, Mr Lane submitted that the judge had placed too much weight on the plausibility of the appellant's account and he referred me to the decision of the Court of Appeal in HK v SSHD [2006] EWCA Civ 1037 which identified the potential dangers of doing so.
23. Mr Lane submitted that the judge's plausibility points were not related to any internal or external inconsistencies. Mr Lane accepted, in his submissions, that a judge could rely upon the plausibility of an individual's claim when, if mixed with inconsistencies identified in the evidence, it could add to the judge's reasons. Here, however, Mr Lane submitted there was no basis for the judge's view: that he had been able to earn the 50,000 US dollars, had experienced no problems earlier with the men, that the extortion had been spontaneous but the appellant had been given a week to meet the demands, that it was unlikely that other businesses would hold his money for him, that he was able to go to the market after being threatened, and that it was unlikely that three of the five men would cover their faces when they were known to him.
24. It is not necessarily impermissible for a judge to rely in his or her reasoning on an aspect of an appellant's account as being implausible. Mr Lane acknowledged that. In Y v SSHD [2006] EWCA Civ 1223, having cited HK, Keene LJ (with whom Ward and Carnwath LJJ agreed) accepted this at [26])
"None of this, however, means that [a judge] is required to take at face value an account of facts proffered by an appellant, no matter how contrary to common sense and experience of human behaviour the account may be. The decision maker is not expected to suspend his own judgment, nor does Mr Singh contend that he should. In appropriate cases, he is entitled to find that an account of events is so far-fetched and contrary to reason as to be incapable of belief."
25. But, there are dangers in doing so as was recognised by the Court of Appeal in HK particularly where a particular cultural context (with which a judge may not be familiar) is not taken into account. In Y, having considered HK, Keene LJ identified the dangers (at [27]):
"A decision maker is entitled to regard an account as incredible by such standards, but he must take care not to do so merely because it would not seem reasonable if it had happened in this country. In essence, he must look through the spectacles provided by the information he has about conditions in the country in question."
26. Where a judge has recourse to reasoning which, expressly or implicitly, doubts the plausibility or possibility of the events occurring as in individual claims, in the absence of other evidence such as documents to substantiate that reasoning, the judge runs the risk that his or her conclusion is simply speculation or a purported commonsense conclusion which does not stand up to objective scrutiny. But, as Mr Lane acknowledged, the implausibility of an individual's account may form part of the reasoning leading a judge to reject the appellant's account as true. A judge must always bear in mind that sometimes the implausible happens. The more features of an appellant's account that are implausible, the more likely it is that the appellant's account cannot stand up to scrutiny as true.
27. Here, Judge Page identified a number of aspects of the appellant's account which, in effect, he considered to be implausible. His view that it was implausible that the appellant could amass an income of 50,000 US dollars over a four-year period working as a money changer was not a view reached in the absence of supporting background evidence. It took into account that 36% of the population of Afghanistan earned below 25 US dollars per month. The context, on the appellant's evidence, was that he ran a "small business" which he contrasted with the "bigger" businesses running "bigger" money exchange shops. The judge's view that this core aspect of the appellant's account was implausible was properly open to him given the background evidence. It was not irrational or perverse.
28. Further, the appellant's evidence was that he knew the five men whom, he claimed, came to his house and threatened him and his family. The appellant's evidence was that he knew them from the market and had known them for about two years. They had bought and sold currency like him and sometimes they had borrowed money from each other (see para 17 of the appellant's witness statement). In my judgment, Judge Page was entitled to take into account that, in the light of this, some of the men (but not all of them) would cover their faces. The point is an obvious and reasonable on, that they were all known to the appellant and what was the point of them or some of them covering their faces.
29. Whilst some of the other reasons given by the judge in paras 21 and 22 relied on by Mr Lane may be less driven by cogent common-sense, overall the judge's reasons, including the points properly made by the judge in respect of Dr Giustozzi's evidence, were in my judgment adequate to sustain the judge's adverse credibility finding.
30. Looking at the judge's reasons as a whole, I am satisfied that the judge was entitled to reach his adverse credibility finding. Despite any shortcomings, the judge gave sufficient and adequate reasons to found his adverse credibility finding. The finding itself is not perverse or irrational in the light of the evidence before the judge.
31. In my judgment, the appellant has failed to establish a material error of law and that the judge's decision should, as a consequence, be set aside.
32. In the light of this, the appellant's challenge to the judge's finding that internal relocation was viable does not arise as the appellant has failed to establish he would be at risk on return in his home area.
Decision
33. For the above reasons, the decision of the First-tier Tribunal to dismiss the appellant's appeal did not involve the making of a material error of law. The First-tier Tribunal's decision, therefore, stands.
34. Accordingly, the appellant's appeal to the Upper Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal