Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00173/2016

THE IMMIGRATION ACTS

Heard at Manchester, Piccadilly Decision & Reasons Promulgated
On the 22nd March 2017 On the 11th April 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
KARWAN AHMEDI
(Anonymity Direction not made)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Brown (Counsel)
For the Respondent: Mr McVeety (Senior Home Office Presenting Officer)
DECISION AND REASONS
1. This is the Appellant’s appeal against the decision of First-tier Tribunal Judge Mathews promulgated on the 11th October 2016, in which he dismissed the Appellant’s appeal against the Respondent’s refusal to grant him protection on asylum, humanitarian protection or on Human Rights grounds.
2. The Appellant is a citizen of Iran who was born on the 1st January 1984. At the appeal hearing before First-tier Tribunal Judge Mathews, the Appellant had claimed that he was an Iranian national of Kurdish ethnicity and that he was a Sunni Muslim by birth. It is his case that he fell in love with his cousin who lives in the same village and that her father was on 2 occasions asked for her hand in marriage by the Appellant, but that the father refused as the Appellant was not considered by the father to be a sufficiently devout Muslim. Despite the refusal the Appellant still saw his cousin and arranged to have a secret liaison with her at her home. It is the Appellant’s case that the couple were disturbed by his cousin’s mother as they were engaged in sexual intercourse and that the Appellant fled, first fleeing to an uncle who told the Appellant he would have to leave Iran for his own safety as his behaviour was unacceptable and a crime. The uncle then arranged for an agent to take the Appellant from Iran a few days later. It was the Appellant’s case that his cousin’s brothers are both Basij and the Appellant fears both her family and the authorities were he to return to Iran.
3. At the appeal hearing before First-tier Tribunal Judge Mathews, no-one attended on behalf of the Respondent to represent the Secretary of State. Further, although an interpreter in Farsi had been provided, it appeared that Capita had unilaterally changed the previous requirements and provided a Farsi interpreter, despite the Tribunal having requested a Kurdish Sorani interpreter. Within his decision, Judge Mathews notes that enquiries were made but unfortunately no Kurdish Sorani interpreter could be arranged to attend the Final Hearing. The Judge had indicated that he was happy for the case to be adjourned if the Appellant so wished, but Dr Mynott representing the Appellant at the First-tier Tribunal was able to take full instructions from his instructing solicitors and from the Appellant by use of a Sorani interpreter contacted by telephone. The First-tier Tribunal Judge noted in his judgment at [10] that the Respondent was not represented and hence there would be no cross-examination of the Appellant and that Dr Mynott intended simply to ask the Appellant to adopt his witness statement and that in those circumstances and with the consent of both the Appellant and his solicitors, Dr Mynott had invited the Judge to proceed in hearing the appeal having had full instructions from the Appellant prior to the appeal and Dr Mynott having had the ability to have a further conference with him using the telephone interpreter. The Judge noted that he had reminded Dr Mynott that he was willing to adjourn the case if requested. However, the Judge noted that it was Dr Mynott’s suggestion that the Appellant adopt his witness statement and that Dr Mynott had no questions and that the case proceed and the Judge noted that with the consent of both the Appellant and his solicitors he was willing to go on and hear the appeal on that basis and that the Appellant had indicated to Dr Mynott, through the telephone interpreter, that he wished to adopt his witness statement and advance it as a full and truthful account of his experiences in Iran. First-tier Tribunal Judge Mathews then heard submissions from the Appellant’s representative and reserved his decision. Within his decision, First-tier Tribunal Judge Mathews did accept that the Appellant was an Iranian national as claimed but did not accept the Appellant’s account of having been in a relationship with his cousin or having been caught whilst having sexual intercourse with his cousin by his cousin’s mother for the reasons set out within the Judge’s decision.
4. The Appellant has now sought to appeal against that decision for the reasons set out in full within the Grounds of Appeal and the renewed Grounds of Appeal, both documents of which I have fully taken account of and which are a matter of record and are therefore not repeated in their entirety here. In summary, however, it is argued that the Learned Judge had erred in law by taking points against the Appellant which were not raised by the Respondent in the reasons for refusal letter and which were not put to the Appellant due to the unusual nature of the proceedings and that the proceedings are said arguably to be tainted by unfairness. It is said that between paragraphs 24 and 26 of the decision the Judge drew influences from answers given by the Appellant during his asylum interview which were not reasons relied upon by the Respondent in refusing to accept the Appellant’s account and that at paragraph 28 the Judge drew an inference from an “absence of further evidence” and at paragraph 30 he said that the Appellant’s account had not been clear and that in respect of another aspect he had “not given an account”. It is said that these were again not reasons relied upon by the Respondent in refusing to accept the Appellant’s account. It was argued that an unfair procedure had taken place and that if points were to be taken against the Appellant which had not previously been raised the Appellant should have had an opportunity to respond to them and that the Judge had indicated that he would not be asking questions.
5. In the second ground of appeal it is argued that the Judge had materially erred in law in determining the alternative argument put by the Appellant that he faced a risk upon return as an undocumented asylum seeker who had illegally exited Iran and that the Judge had not taken account of material including the Appellant’s avowed rejection of Islam as expressed at paragraphs 4 and 56 of his witness statement and that there was a real risk that his views would come to light under questioning by the authorities upon return giving rise to a real risk to the Appellant.
6. Permission to appeal was initially refused by First-tier Tribunal Judge Froom on the 15th November 2016, but was subsequently granted by Upper Tribunal Judge Lindsley on the 14th December 2016, who found that it was arguable that the First-tier Tribunal Judge had erred in law in procedurally failing in not putting the specific issues that the Tribunal was concerned over in judging appropriately the Appellant’s account to him at the hearing before making findings on that basis, given the specific way the First-tier Tribunal Judge found the Appellant was not credible differed from the reasoning of the Respondent. However she found that it was not clear to her how the determination of whether or not the Appellant had rejected Islam could ultimately be material to the outcome of the appeal, but the second ground she said could also be argued.
7. It was on that basis that the case came before me in the Upper Tribunal.
8. At the Upper Tribunal hearing the Appellant made an application under Rule 15(2a) to adduce additional evidence in respect of the error of law hearing which was not available at the time of the initial hearing which were the handwritten contemporaneous notes of Dr Mynott who presented the appeal before the First-tier Tribunal and the notes that the Judge stated that he did not intend to ask any questions. Dr Mynott had also produced a witness statement dated the 16th March 2017, in that regard.
9. At the Upper Tribunal, Mr McVeety did not object to that evidence. In such circumstances, given that I accept that the evidence could not have been submitted to the First-tier Tribunal, given that it related to Dr Mynott’s statement regarding what happened in the First-tier Tribunal and his notes of that hearing, and given that there has not been unreasonable delay in producing that evidence, I do find, taking into account the overriding objective, that it is in the interests of justice for such evidence to be admitted in respect of the error of law hearing, and I therefore have taken account both of Dr Mynott’s statement and his notes, in reaching my decision.
10. In his oral submissions to me, Mr Brown argued that the Judge had proceeded on the basis that he would not be asking any questions. He said that the credibility challenges should therefore have been confined to those set out within the reasons for refusal between paragraphs 32 and 35 of the refusal decision. He argued the Respondent was not there, such that the Surendran guidelines applied. He told me that he was not arguing that the Judge had to adjourn in such circumstances but argued that the Judge should have raised his concerns as set out between paragraphs 24 and 28 of his decision so that an explanation could be proffered by the Appellant and that had the Judge indicated that he did have concerns, then an application for an adjournment could have been made and that the inconsistences with the asylum interview noted by the Judge had not been put to the Appellant. Mr Brown argued that the only credibility point taken within the refusal was the Appellant’s inability to recall dates. He argued that when the First-tier Tribunal Judge had said at [28] that further evidence was needed on the point, that the Appellant should have been given the opportunity of producing such evidence and that that issue had not been challenged by the Respondent. He argued that the decision of First-tier Tribunal Judge Mathews should be set aside and the case remitted back for rehearing before a differently constituted Tribunal.
11. In his oral submissions to me, Mr McVeety on behalf of the Respondent, submitted that contrary to the submission made by Mr Brown on behalf of the Appellant, the issue which was dealt with at paragraph 28 of the Judge’s decision as to whether or not it was credible that the Appellant had been found having sexual intercourse with his cousin by the cousin’s mother was not a new issue as claimed, but was in fact raised within the refusal notice at paragraph 34 of the refusal decision and was then dealt with at paragraph 28 of the Judge’s decision. He argued that no-one had forced Dr Mynott and the Appellant to proceed with the appeal and that they were given the opportunity to ask for an adjournment on 2 occasions and argued that the case had a whiff about it that if the Appellant lost he would simply say that the hearing was unfair. He argued that pursuant to the Surendran guidelines, it was only if credibility was raised for the first time or that there was a completely new issue raised that the Appellant should be given the opportunity of digging with it and the question as to whether or not the Appellant was having a relationship with his cousin was not a new issue and that the Judge simply gave reasons for rejecting the Appellant’s account in respect of that issue. He argued that the Appellant could not say that he was taken by surprise in respect of the Judge considering that issue and that the Judge was not limited to the reasoning put forward in the refusal notice. In his response, Mr Brown argued that the Judge at paragraph 24 had said more than was said by the Respondent at paragraph 34 of the refusal notice and that the Appellant had now been criticised for not giving an explanation on the central issue and that he could have given such an explanation if the matter had been put to him through an interpreter.
My Findings on Error of Law and Materiality
12. Although the circumstances in this appeal were somewhat unusual, in that the Respondent was not represented, and in addition, the wrong interpreter had been booked, I note and accept having fully considered all of the evidence in this case, and in particular the explanation given by First-tier Tribunal Judge Mathews in his decision and reasons, that in light of the circumstances appertaining, and the fact that the wrong interpreter had been booked, at the very start of the appeal Judge Mathews gave the Appellant and Dr Mynott the opportunity of asking for an adjournment, which he indicated that he would have granted. He also gave the opportunity for Dr Mynott to take instructions both from his instructing solicitors and take instruction from the Appellant, through the use of a Sorani interpreter who was contacted by telephone and that as stated by First-tier Tribunal Judge Mathews, both the Appellant and his solicitors were content for the appeal to proceed, with the Appellant simply adopting his statement, even though no questions could be asked of him in cross-examination, given the Respondent not being there, and that even after Dr Mynott having taken instructions the Judge again offered an adjournment, but it was in fact Dr Mynott who, on behalf of the Appellant, indicated that the appeal should proceed. I therefore find that there was no procedural unfairness in the way that the Judge dealt with the issue as to whether or not the case should be adjourned. Indeed, I note that Mr Brown does not argue that the unfairness related to the case not having been adjourned, but simply in terms of the issue as to whether or not the Judge should have limited the reasons for finding against the Appellant, in circumstances where he was not subject to cross-examination.
13. Given that the Respondent was not represented, I do accept the submission of Mr Brown that the Surendran guidelines applied following the case of Surendran (IAT appeal number 21679 heard on the 2nd June 1999) as set out in the annex of MNM v Secretary of State IAT (starred appeal) 00/TH/02423.
14. The guidelines read as follows:
THE SURENDRAN GUIDELINES
1. Where the Home Office is not represented, we do not consider that a special adjudicator is entitled to treat a decision appealed against as having been withdrawn. The withdrawal of a decision to refuse leave to enter and asylum requires a positive act on the part of the Home Office in the form of a statement in writing that the decision has been withdrawn. In the instant case, and in similar cases, this is not the position. The Home Office, on the contrary, requests that the special adjudicator deals with the appeal on the basis of the contents of the letter of refusal and any other written submissions which the Home Office makes when indicating that it would not be represented.
2. Nor do we consider that the appeal should be allowed simpliciter. The function of the adjudicator is to review the reasons given by the Home Office for refusing asylum within the context of the evidence before him and the submissions made on behalf of the appellant, and then come to his own conclusions as to whether or not the appeal should be allowed or dismissed. In doing so he must, of course, observe the correct burden and standard of proof.
3. Where an adjudicator is aware that the Home Office is not to be represented, he should take particular care to read all the papers in the bundle before him prior to the hearing and, if necessary, in particular in those cases where he has only been informed on the morning of the hearing that the Home Office will not appear, he should consider the advisability of adjourning for the purposes of reading the papers and therefore putting the case further back in his list for the same day.
4. Where matters of credibility are raised in the letter of refusal, the special adjudicator should request the representative to address these matters, particularly in his examination of the appellant or, if the appellant is not giving evidence, in his submissions. Whether or not these matters are addressed by the representative, and whether or not the special adjudicator has himself expressed any particular concern, he is entitled to form his own view as to credibility on the basis of the material before him.
5. Where no matters of credibility are raised in the letter of refusal but, from a reading of the papers, the special adjudicator himself considers that there are matters of credibility arising therefrom, he should similarly point these matters out to the representative and ask that they be dealt with, either in examination of the appellant or in submissions.
6. It is our view that it is not the function of a special adjudicator to adopt an inquisitorial role in cases of this nature. The system pertaining at present is essentially an adversarial system and the special adjudicator is an impartial judge and assessor of the evidence before him. Where the Home Office does not appear the Home Office’s argument and basis of refusal, as contained in the letter of refusal, is the Home Office’s case purely and simply, subject to any other representations which the Home Office may make to the special adjudicator. It is not the function of the special adjudicator to expand upon that document, nor is it his function to raise matters which are not raised in it, unless these are matters which are apparent to him from a reading of the papers, in which case these matters should be drawn to the attention of the appellant’s representative who should then be invited to make submissions or call evidence in relation thereto. We would add that this is not necessarily the same function which has to be performed by a special adjudicator where he has refused to adjourn a case in the absence of a representative for the appellant, and the appellant is virtually conducting his own appeal. In such event, it is the duty of the special adjudicator to give every assistance, which he can give, to the appellant.
7. Where, having received the evidence or submissions in relation to matters which he has drawn to the attention of the representatives, the special adjudicator considers clarification is necessary, then he should be at liberty to ask questions for the purposes of seeking clarification. We would emphasise, however, that it is not his function to raise matters which a Presenting Officer might have raised in cross-examination had he been present.
8. There might well be matters which are not raised in the letter of refusal which the special adjudicator considers to be relevant and of importance. We have in mind, for example, the question of whether or not, in the event that the special adjudicator concludes that a Convention ground exists, internal flight is relevant, or perhaps, where, from the letter of refusal and the other documents in the file, it appears to the special adjudicator that the question of whether or not the appellant is entitled to Convention protection by reason of the existence of civil war (matters raised by the House of Lords in the case of Adan). Where these are matters which clearly the special adjudicator considers he may well wish to deal with in his determination, then he should raise these with the representative and invite submissions to be made in relation thereto.
9. There are documents which are now available on the Internet and which can be considered to be in the public domain, which may not be included in the bundle before the special adjudicator. We have in mind the US State Department Report, Amnesty Reports and Home Office Country Reports. If the special adjudicator considers that he might well wish to refer to these documents in his determination, then he should so indicate to the representative and invite submissions in relation thereto.
10.We do not consider that a special adjudicator should grant an adjournment except in the most exceptional circumstances and where, in the view of the special adjudicator, matters of concern in the evidence before him cannot be properly addressed by examination of the appellant by his representative or submissions made by that representative. If, during the course of a hearing, it becomes apparent to a special adjudicator that such circumstances have arisen, then he should adjourn the case part heard, require the Home Office to make available a Presenting Officer at the adjourned hearing, and prepare a record of proceedings of the case, which should be submitted to both parties up to the point of the adjournment, and such record to be submitted prior to the adjourned hearing.”
15. Although it was argued by Mr Brown that the only credibility issue raised within the refusal notice was in respect of the Appellant’s inability to recall dates accurately, when one reads the refusal notice fully, and takes account of the full reasoning between paragraphs 31 and 35 of the refusal notice, it is clear that it was not simply an inability of the Appellant to remember dates or months when asked as to when it was that he had asked to marry his cousin on the 2 separate occasions. In addition it was not considered credible that he would go to her house at 10 o’clock at night given the family knew that he wanted to marry her and had rejected him on 2 separate occasions and it was also not considered credible that he would risk having sexual intercourse in her house where they could be discovered at any time, when it was said that her brothers were working for Basij and that he was on his own admission aware of the risks of being involved in a relationship with her. It was also found not to be credible in the refusal notice that the Appellant simply did not practice his religion more if the only reason why the family would not allow him to marry was because he was not very religious. Nor was it considered credible that he would risk sleeping with his cousin, when there were other means by which he would have been able to marry her rather than risk not only his life but also the life of the girl who he said that he was madly in love with. Credibility was therefore very much part of the reasoning in the reasons for refusal letter, and therefore this was not a case where no matters of credibility were raised in the refusal letter and where the credibility had been accepted by the Respondent, but was not accepted by the Judge, as at paragraph 5 of the head note in Surendran.
16. Matters of credibility had been raised from the refusal letter, and the Appellant was perfectly able to deal with those issues either in his statement, and submissions could have been made on credibility issues and any inconsistence between the Appellant’s evidence in his statement and in the interviews, could have been dealt by Dr Mynott in his closing submissions. The issue of credibility was therefore not a “new matter which the Appellant should have been specifically asked to address in giving evidence” but was an existing and live issue before the Tribunal, given the contents of the refusal letter. It was perfectly open for the Judge to formulate his own views upon credibility, and in that regard, he was not bound simply by the reasons given for rejecting credibility within the refusal notice. It was perfectly open to the Judge, in this case, as in any other, to consider inconsistences in the Appellant’s account, as he did within the refusal notice, such as paragraph 24 when he found that there was an inconsistency given between the answer at question 19 of the interview that the Appellant had not spoken with his family since he left Iran because he had lost their contact details, whereas at question 135 it was said that his family had disowned him because of what he had been caught doing with his cousin.
17. The Judge further found in that regard at [25] that the Appellant had said that he initially fled to his uncle’s home and had his mobile phone with him and therefore he was able to contact his uncle and the Appellant said that during that time when he was hiding at his uncle’s house the brothers of his cousin were looking for him that it would require some contact between the Appellant and other family members. The Judge was therefore not persuaded that the Appellant having fled with a mobile phone in his possession which he had used, was subsequently unable to make contact with his family. Further, at [26] the Judge found that there were inconsistences in the answers given at interview by the Appellant at question 85 where he asserted that he went to ask for his cousin’s hand in marriage twice and yet at question 110 said that the second request was made in fact by his mother rather than by him. Given that credibility for the account was put in issue by the Respondent within the refusal notice and was not a “new matter”, I do not find that the Judge himself should have adopted an inquisitorial role in seeking explanation for those inconsistences, in this particular case. Even if the Respondent had been present as had an interpreter and the Appellant had been cross-examined, but these specific inconsistences had not been brought to the Appellant’s attention, the Judge would not have been then under an obligation to point out those inconsistences, before dealing with them in his decision.
18. It is not incumbent upon the First-tier Tribunal Judge to point out every inconsistency with the Appellant’s account that may form part of his reasoning, and give the Appellant an opportunity of dealing with such inconsistences. It is for the Judge to formulate his own views on credibility, taking account of any inconsistences that he finds. The Judge is not duty-bound to give an Appellant the possibility of answering every possible concern that the Judge may have prior to the Judge writing his decision. The Judge is not required to go through his reasoning to make sure the Appellant either agrees or disagrees or provides an explanation, prior to writing his judgment.
19. Clearly, had credibility not been in issue, and the Appellant’s credibility had been accepted by the Respondent then the Judge in those circumstances would have been duty-bound to allow the Appellant to answer the credibility concerns that he had prior to finding against him on that issue, but that was not the case here, credibility was always in issue and was already a reason for rejecting the Appellant’s account in the refusal notice.
20. Further, although it is said that the issue at paragraph 28 as to whether or not it was credible that the Appellant had been found by his cousin’s mother having sexual intercourse with his cousin, I do accept the submission of Mr McVeety, that that was dealt with within the refusal notice. It was specifically found within the refusal notice that that account was not credible that the Appellant would have risked having sexual intercourse in her home where they could be discovered at any time especially in circumstances where it is said that her brothers worked for Basij at [34] of the bundle. The Judge at [28] has expanded upon that to the extent that he explains his reasoning, in that it was said that the interruption to their sexual intercourse was when the cousin’s mother was coming back from milking the family’s livestock. The Judge comments that “In the absence of further evidence on this point I am not persuaded the Appellant would have relied upon his girlfriend’s mother being absent from the home simply because she was tending to the animals of the family and that that was a task that would not keep her away for a lengthy or significant period.” In my judgement the Judge was perfectly entitled to reach that finding and that it was a finding open to him, and that as that issue was raised as a specific reason for refusal in terms of whether it was credible that the Appellant would have had sexual intercourse with his cousin at her home within the refusal notice and the Judge was entitled to form his own views as to whether or not that was credible, and was not obliged in such circumstances to ask the Appellant regarding his concerns on his account the cousin’s mother could have come back from milking the family’s livestock at any time and that that activity would not have kept her away for a lengthy or significant period.
21. The Appellant’s evidence was clear that the cousin’s mother was milking the livestock, and the Judge was entitled to formulate his own views as to the credibility of that and was not obliged to put his concerns in respect of that issue of credibility to the Appellant or ensure that those questions were put to the Appellant by Dr Mynott, or the case be adjourned in order that he be cross-examined on that point. The fact that the Judge mentioned that in the absence of further evidence he was not persuaded that that account was credible, also does not mean that he should have specifically asked for such further information. It was for the Appellant to produce sufficient evidence to prove his appeal. It is not for the Judge to seek out evidence to fill any evidential gaps in the Appellant’s account. That is not the role of the First-tier Tribunal Judge. It is for the Appellant to produce sufficient evidence to establish his account, and to establish that his account is credible.
22. In such circumstances, I do not accept that the Judge acted in any way unfairly in his conduct of his case, especially given that he had twice offered an adjournment to the Appellant, which was refused. The fact that the Judge had not sought to ask questions cannot and should not have been taken by the Appellant as being any indication that the appeal was thereby simply going to be allowed. It was not the role of the Judge to conduct an inquisitorial role, and the Judge was not, I find, making findings on any new issue that had not been raised within the refusal notice. The Judge may have formulated his own views on credibility, but the credibility of the Appellant’s core account was clearly an issue from the original refusal notice.
23. In respect of the second ground of appeal, the Appellant states within his own witness statement at [4] that he was “born a Sunni Muslim, but I do not follow my religion. The reasons that I don’t follow Islam is because of the all the killings that have been going on for years”. At [56] of his statement, he stated that “I could not start practicing Islam again as this would have been me lying to myself after everything that Islam has done to people in many countries in the name of Islam over the years”. However, although First-tier Tribunal Judge Mathews had not specifically dealt with what is said to be the Appellant having rejected Islam, he clearly did not accept the Appellant’s account that he had been prevented from marrying his cousin because he was not a sufficiently devout Muslim. There was insufficient evidence produced by the Appellant to establish that he will be at a real risk upon return in this regard, as this was not a case of religious conversion or the Appellant having said or done anything against Islam, which would have put him at risk from the authorities. Nor was there any evidence that the authorities expressed any concern or would be aware of the extent to which the Appellant practiced or did not practice Islam, and it was not seemingly put as an argument before the First-tier Tribunal Judge that not being a devout muslim in itself would put him at risk upon return. Indeed, that ground of appeal was not pursued before me by Mr Brown in his oral submissions. I am therefore not satisfied that Judge Mathews materially erred in law in that regard.
24. I therefore find that First-tier Tribunal Judge Mathews did properly and fairly deal with the case, and made findings which were open to him on the evidence and that he has properly dealt with the issues before him and the decision does not disclose any material error of law. The Appellant’s appeal is therefore dismissed.
Notice of Decision
The decision of First-tier Tribunal Judge Mathews does not disclose any material error of law and is maintained;
I make no order in respect of anonymity, no such order having been made by First-tier Tribunal Judge Mathews, and no such order having been sought before me.
Signed

Deputy Upper Tribunal Judge McGinty Dated 24th March 2017