Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00058/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 September 2016
On 14 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR A J
(anonymity direction MADE)
Respondent

Representation:
For the Appellant: Mr D Clarke, Home Office Presenting Officer
For the Respondent: Mr A Maqsood, Hamlet Solicitors LLP

DECISION AND REASONS
1. This is an appeal from a decision of First-tier Tribunal Judge Samimi which was promulgated on 23 June 2016. I will continue the direction for anonymity which was made in the First-tier Tribunal. The appellant (as he was in the First-tier Tribunal, and which designation I adopt hereafter for ease of reference) is of Burmese nationality and Rohinge ethnicity. He pursued a claim under the 1951 Refugee Convention (and, in the alternative, for humanitarian protection) on the basis that a return to Bangladesh would also violate human rights protection.
2. The decision sets out the substantive burden and standard of proof at paragraph 4. It summarises the appellant's claim at paragraphs 5 and 6 and deals with the respondent's submissions at 7 and the appellant's submissions at 8. The findings and conclusions are found at paragraphs 10 to 20 of the determination.
3. The matter turned largely on the credibility of the appellant, with particular regard to issues concerning his treatment whilst in Bangladesh. Because claims of this type are heavily dependent on credibility findings it is important that the judge sets out with care and with precision the assessment which is made in relation to an appellant's credibility and the legal and factual basis for those conclusions.
4. The focus of Mr Clarke's submissions on behalf of the Secretary of State (whose appeal this is) related to paragraph 17 of the determination which reads as follows:
"On the totality of the evidence before me I do not find in the circumstances of this case the respondent has satisfied the burden of proof on the higher degree of probability that the Refugee book submitted by the appellant is not genuine or that it has been obtained for the sole purpose of supporting the appellant's asylum claim. In any event, the appellant's evidence of his background and ethnicity as a Rohinge has been consistent. I therefore accept that the appellant has made his best endeavours to support his case that he is a Rohinge Refugee who escaped the Refugee camp and that he is not a national of Bangladesh."
5. I took the provisional view that there was an error on the judge's part in reversing the Convention burden of proof and requiring the Secretary of State to satisfy the Tribunal that the refugee book was not genuine. It is regrettable that in making this assessment the judge made no reference to the guideline authority of Tanveer Ahmed and the Secretary of State for the Home Department [2002] UKIAT 00459. The principles to be derived from that judgment are summarised in paragraph 38 and read as follows.
"1. In asylum or human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.
2. The decision maker should consider whether a document is one on which reliance should be properly placed after looking at all the evidence in the round.
3. Only rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without evidence. Failure to establish allegation on the balance of probabilities to a higher civil standard does not show that the document is reliable."
3. Mr Maqsood who appears for the appellant made two submissions on this point. First he maintained that there is an implied allegation of forgery based upon the fact that the Secretary of State has consistently suggested that there are alterations to the document and secondly, that in a lengthy narrative in the determination at paragraph 14 the judge deals with those matters and comes to a balanced conclusion on them which is unimpeachable.
4. In my assessment those submissions do not hold good: first, because serious allegations of forgery must be made expressly and cannot be inferred from other comments or representations. Secondly, and more importantly, the singling out of this particular item and the reversal of the burden of proof leaves the reader of the decision with the impression that the overall approach of the judge to the evidence was flawed.
5. The second issue is whether the misapprehension by the judge as to the burden of proof in relation to this one item of evidence (the Refugee book) is such as to infect the remainder of the decision. Initially I took the view that the words "in any event" which come part-way through paragraph 17 of the decision serve to indicate that the judge placed that matter on one side and then proceeded to examine the evidence in its totality notwithstanding her misapplication of the burden of proof in relation to it.
6. However I was persuaded by the submissions of Mr Clarke who took me to various parts of the decision and indicated ways in which the judge placed undue weight upon her flawed finding with regard to that Refugee book and therefore did not make a proper and balanced assessment of credibility in the round.
7. Mr Maqsood took me again to paragraph 14 and to the assessment which the judge gave there. However, I cannot be confident that, notwithstanding the lengths to which the judge went to review and analyse the evidence, that the flaw in relation to the assessment of the Refugee book has been properly mitigated.
8. I have concluded there an error of law, and that it is a material one which goes to the heart of the decision. In those circumstances it is appropriate that the decision be set aside.
9. Mr Clarke and Mr Maqsood both agree that, were I so to conclude, as this is a credibility issue the proper course, following the Practice Direction, would be to remit this matter to a First-tier Tribunal to be decided afresh.

Notice of Decision
Having found a material error of law, the decision of the First-tier Tribunal is set aside. The matter is remitted to be heard afresh by a First-tier Tribunal Judge other than Judge Samimi.

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 their 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 Mark Hill Date: 14 September 2016

Deputy Upper Tribunal Judge Hill QC