Tribunal decisions

The decision

IAC-AH-CO/sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00445/2016

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 31st January 2017
On 15th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

KH
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No legal representation
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against the decision of Judge Green of the First-tier Tribunal (the FFT) promulgated on 22nd August 2016.
2. The Appellant claims to be an Iranian of Kurdish ethnicity born in 1995. The Respondent does not accept his nationality, believing him to be an Iraqi of Kurdish ethnicity.
3. The Appellant claimed asylum on 28th September 2015 on the basis of his imputed political opinion. He claims that if returned to Iran he would be targeted by the authorities because of his support for the Komala Nationalist Kurdish Party (KNKP). He claimed that his father is a member of the KNKP, and the Appellant helped his father's friend deliver letters. His father's friend was detained by the police and informed them of the Appellant's activities. Subsequently the police called at the Appellant's house searching for him and told his mother that he should attend the police station. Because of this the Appellant fled from Iran.
4. The application was refused on 8th January 2016 and the Appellant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The appeal was heard by the FTT on 18th August 2006. After hearing evidence from the Appellant, the FTT found his account not credible, and his appeal was dismissed on all grounds.
5. The Appellant applied for permission to appeal to the Upper Tribunal. Permission to appeal was initially refused by Designated Judge Macdonald who found that the grounds of application did not engage with the specific findings made by the FTT and therefore did not disclose any arguable error of law.
6. The application was renewed to the Upper Tribunal, and permission to appeal was granted by Upper Tribunal Judge Finch and I set out below the grounds of permission in part;
The Appellant was not represented at the appeal hearing and, as this is an asylum appeal, I must apply anxious scrutiny when considering his application for permission. The First-tier Tribunal Judge found in paragraph 14 of his decision that the Appellant had failed to prove that he was Iranian. However, it is not clear that, when doing so, he applied the requisite low standard of proof required when considering a key part of his claim. As he noted Mariwan is just a few miles from the Iraqi border and is part of Iraqi Kurdistan. Therefore, the fact that he spoke Kurdish and not Farsi did not necessarily show that he was not Iranian.
This undermined the decision by the First-tier Tribunal Judge that he could be safely returned to Iraqi Kurdistan.
Therefore, I am satisfied that the First-tier Tribunal Judge did make arguable errors of law in his decision and that permission to appeal should be granted.
7. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008 maintaining that the FTT had not erred in law. It was contended that the FTT was entitled to find that the Appellant was not an Iranian national but an Iraqi national of Kurdish ethnicity and there was nothing in the FTT decision to suggest that the judge did not apply the appropriate standard of proof.
8. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FTT decision should be set aside.
The Upper Tribunal Decision
9. The Appellant attended the hearing. I established that there was no difficulty in communication between the Appellant and interpreter in Kurdish Sorani.
10. The Appellant confirmed that he did not have legal representation and that he was content to proceed without legal representation.
11. I ascertained that the Appellant had seen the grant of permission to appeal and understood why permission to appeal had been granted.
12. I explained to the Appellant the nature of the proceedings, in that my role was to ascertain whether the FTT had made a mistake of law. If a mistake of law had been made which made a difference, then the decision would be set aside, but if I decided that there was no mistake of law, then the decision of the FTT would stand.
13. I invited the Appellant to state why he believed that the FTT had made a mistake of law. He explained that he is Iranian and he would answer any questions to prove he is Iranian. He said that the FTT had not explained why he was not believed. He accepted that he did not know the colour of the KNKP flag and said that this flag was banned in Iran. He said he had not worked for the party for that long. He said that he had been unable to explain himself to the FTT because he did not have a representative.
14. Mr Bates then made oral submissions on behalf of the Respondent, relying upon the rule 24 response. Mr Bates pointed out that the grant of permission when referring to paragraph 14 of the FTT decision had confused submissions of the Presenting Officer with findings of fact. Paragraph 14 contained the Presenting Officer's submissions not the conclusions of the FTT.
15. The FTT had made findings open to it on the evidence and given adequate reasons for those findings. Mr Bates pointed out that the FTT had not admitted into evidence untranslated documents as no reliance could be placed upon them, and if the Appellant had documents that had been translated, it was open to him to submit them to the Home Office for consideration of further submissions.
16. I asked the Appellant if he wished to respond to what had been said on behalf of the Respondent. He explained that he is uneducated, and that he did not speak Farsi, because it was not a language used in the area where he lived.
17. The FTT had made reference to the Appellant having a Facebook account, and made a finding that this contradicts his claim to be illiterate. The Appellant stated that he did have a Facebook account, and that his friend helped him to open that account and operate it. He said he had not had the account long, and stated that it was possible to operate it by copying and pasting, which was not too complicated.
18. Reference had been made by the FTT to the Appellant failing to claim asylum in France. He said he had not done so because he was under the control of an agent.
19. The Appellant repeated that he had been unable to explain himself without a legal representative. He said that it was not necessary to be able to read or write to operate a Facebook account.
20. The Appellant said that he had not been asked questions about Iran, and he wanted to be asked questions so that he could confirm that he is Iranian. I explained to the Appellant, as I had explained on two previous occasions, that this hearing was not a rehearing of his appeal, but the purpose was to ascertain whether the Tribunal which had initially dismissed his appeal had made a mistake of law.
21. When I was satisfied that the Appellant had concluded his remarks, I reserved my decision, and explained to the Appellant that I wanted to reflect upon what I had heard, and I would then issue a written decision.
My Conclusion and Reasons
22. The FTT did not materially err in law when deciding this appeal. My reasons for reaching this conclusion are set out below.
23. I do not find that the FTT failed to apply the correct standard of proof. The FTT was careful to set out the burden and standard of proof in paragraph 6 confirming that the standard "is lower than the normal civil standard."
24. The FTT at paragraph 8 self-directed when considering credibility, noting that caution must be exercised:
"in rejecting as incredible an account by an anxious and inexperienced asylum seeker, whose reasons for seeking asylum may well be expected to contain inconsistencies and omissions in the course of its revelation to the authorities and investigation on appeal."
25. The FTT also self-directed on the basis that it is possible to find a witness is not telling the truth about some matters, or has exaggerated the story, or is simply uncertain, but still find that the centrepiece of the account stands.
26. It does appear that the judge granting permission to appeal believed that paragraph 14 of the Decision, contained findings made by the FTT. This is not the case. That paragraph contains submissions made by the Presenting Officer on behalf of the Respondent. The FTT did not find in paragraph 14 that the Appellant had failed to prove that he was Iranian.
27. It is in paragraph 16 that the FTT finds that the Appellant has failed to prove that he is an Iranian national. The FTT gives reasons for rejecting the Appellant's claim to be illiterate, based upon his Facebook page and the fact that he signed his interview records. That finding was open to the FTT on the evidence.
28. The FTT had to take into account pursuant to section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 that the Appellant had failed to claim asylum in France. The weight to be attached to such a failure is a matter for the FTT and there is no error in the FTT's conclusion that the Appellant had failed to give an adequate explanation for his failure to claim asylum in a safe country.
29. The FTT took into account the Appellant's account of alleged police raids, finding these lacking in plausibility. The FTT gave adequate reasons for reaching that conclusion in paragraph 16.
30. In the same paragraph the FTT did not find it credible that the Appellant did not display a knowledge of the KNKP consistent with his claim to have always supported it, and the fact that his father was a member.
31. It is apparent that the FTT took considerable care when examining the Appellant's account, taking into account that he did not have legal representation.
32. I do not find any satisfactory evidence to indicate that the FTT did not apply the lower standard of proof when examining the Appellant's claim. The FTT examined the evidence before it, made findings upon that evidence which were open to it to make, and gave adequate reasons for those findings.
33. As mentioned by Mr Bates, if the Appellant has evidence such as documents that have not been translated, and that evidence was not before the FTT, it may be possible for him to provide those documents direct to the Home Office if they have been translated and he believes that they are relevant.
Notice of Decision

The making of the decision of the FTT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeal is dismissed.

Anonymity

An anonymity direction was made by the FTT. I continue that direction pursuant to 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 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.

Signed Date

Deputy Upper Tribunal Judge M A Hall 3rd February 2017

TO THE RESPONDENT
FEE AWARD

No fee has been paid or is payable. The appeal is dismissed. There is no fee award.

Signed Date

Deputy Upper Tribunal Judge M A Hall 3rd February 2017