Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA002382016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 7 June 2016
On 10 June 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AMIR PARSA CHOUBAR
Respondent

For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer

For the Respondent: Mr E MacKay, of McGlashan MacKay, Solicitors

DECISION AND REASONS
1. The parties are as described above, but the rest of this decision refers to them as they were in the First-tier Tribunal.
2. Designated Judge J G Macdonald allowed the appellant's appeal against refusal of recognition as a refugee from Iran.
3. The SSHD's grounds of appeal to the UT are that the judge failed to apply the principles of Devaseelan (1) to the evidence of the appellant and (2) to the evidence of his wife.
4. Mr Matthews accepted that the judge had not fallen into the misconception that the appellant's conversion to Christianity was entirely a "new issue", a phrase used at paragraph 48 of the decision and criticised in the grounds. However, Mr Matthews argued that the judge overlooked the full significance of the determination in case DA/00531/2013 by a panel comprising Judge Cheales and Mr Jones MBE JP, and failed to appreciate that the panel did not find against the appellant only on his alleged involvement in Christianity in the UK but on claims dating back to before he left Iran. The panel rejected entirely that he had any prior interest in Christianity, and Judge Macdonald should have taken that as his starting point. The judge did have evidence to consider beyond that which was before the panel, but it could not be said that he would have come to the same conclusion had he appreciated the extent of the findings in the first determination. There would have had to be a very strong explanation for departing from the prior finding that the appellant's interest in Christianity was entirely manufactured. The case should be remitted for a fresh hearing in the First-tier Tribunal.
5. Mr Mackay submitted that the judge's decision was rigorous, thorough and well reasoned. At paragraph 48 the judge explained the correctly sceptical approach to be taken to new issues raised by an appellant who had been a persistent criminal, who was liable to deportation and whose previous appeal had been dismissed. The judge explained why he found it unsurprising that the previous determination had not accepted the appellant was a Christian convert, there having been very little evidence presented. The judge explained clearly why the case before him was quite different. The judge did not fail to observe the principles established in Devaseelan. He adopted the correct starting point, but found a considerable body of new evidence to justify different conclusions. That new evidence could not have been before the earlier tribunal, being of later date. This applied to the evidence of Pastor Palmer, which had particularly impressed the judge. The judge had known there needed to be good reasons to come to different conclusions, and he had given those reasons.
6. Mr Matthews accepted that the second ground was rather weaker, because it did not acknowledge that the evidence by the appellant's wife which was not accepted in a separate earlier tribunal decision on an appeal by her went to the genuineness of her relationship, and not to the genuineness of the appellant's conversion to Christianity.
7. Mr Mackay pointed out that although Judge Macdonald did make a comment on the evidence of the wife, this was not a core finding and not of the essence of the case.
8. I observed at the end of the submissions that the permission to appeal appeared to have been granted on a misconception, rather than on the strength of the SSHD's grounds. The judge granting permission said that if Judge Macdonald was right in his conclusion that the appellant was a genuine convert, the question would have been whether he would attract risk by bringing his Christianity to the attention of others or by proselytising upon return, when he did not do so before. Representatives agreed that this was a mistaken view of the case, because the respondent had conceded in the First-tier Tribunal that if the appellant made out his case to be a genuine Christian convert, he would succeed.
9. I indicated that the SSHD's appeal to the Upper Tribunal would be dismissed.
10. I note that the appellant did not appear and was not represented before the First-tier Tribunal in 2013. Of course that does not mean that the adverse conclusions are not to be taken as a significant starting point; the appellant's lack of interest in those proceedings went against him. However, it was open to Judge Macdonald to come to different conclusions when the case put to him was a very different one. There is nothing to suggest that he did not appreciate and apply the correct approach to the earlier determination. As Mr MacKay pointed out, appreciation of the correct principle is made plain at paragraph 48. The judge then explained why he found the case a rare example, and why he found the evidence impressive.
11. The judge's conclusion that the appellant had proved his case to the necessary standard was open to him, is fully explained, and is not affected by any legal error of approach.
12. The decision of the First-tier Tribunal shall stand.

9 June 2016
Upper Tribunal Judge Macleman