Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00466/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th September 2016
On 14th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

[A C]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Ferguson (Solicitor)
For the Respondent: Mr E Tufan (HOPO)

DECISION AND REASONS
1. The Appellant, is a male, a citizen of Pakistan, who was born on [ ]. He appealed to the First-tier Tribunal against a decision of the Respondent dated 4th January 2016, refusing his application to grant him asylum or any other form of international protection under paragraph 336 HC 395.
2. The Appellant's appeal was heard by First-tier Tribunal Judge Miles who noted the Appellant's claim at the outset as one of having worked for a man by the name of [MA], and the ISI, which claim was not accepted. This matter, together with the fact that the Appellant last entered the United Kingdom in December 2005, but did not claim asylum until December 2015, had been arrested as an overstayer in May 2007, was taken, as the judge observed, as having undermined the Appellant's credibility (see paragraph 10.2).
3. Judge Miles noted that on the Appellant's own account, "he has never suffered any physical assault in Pakistan; indeed, the only assault he has suffered has taken place in the United Kingdom" (10.2). Second, Judge Miles observed that the other fact of significance here was that "the Appellant is asserting that he and his family are at real risk in Pakistan on the basis of events which concluded in 2005, some eleven years ago" and that, "there is simply no evidence that [MA] still involved in the ISI in Pakistan or that he is still a person of any significance or influence or even that he is still alive" (paragraph 10.12). Finally, the judge noted that there was "simply no evidence whatsoever over and above the Appellant's assertion that either he or any member of his family is at real risk in Pakistan from [MA] or the government authorities in the guise of ISI" (paragraph 10.13).
4. The appeal was dismissed.
5. At the hearing before me on 26th September 2016, Mr Ferguson, appearing on behalf of the Appellant, made submissions, based upon the grounds of application. First, he submitted that there had been a failure to give adequate reasons or a failure to make material findings of fact. This was important because there had been a positive credibility finding (at paragraph 10.11) where the judge had said that "his account does satisfy the low threshold test and accordingly I make a positive credibility finding in his favour. From that account it is very clear that he has a strong subjective fear of persecution on return to Pakistan" (paragraph 10.11). What was important, was that the judge had completely failed to address the crucial issue as to how the Appellant would act on return to Pakistan. He detested the Pakistani authorities. He detested the army and intelligence services. They had ruined his life. Therefore, if he expressed anti-government views and anti-army views then he was bound to attract adverse attention that would lead to his ill-treatment. This had not been addressed by the judge.
6. Second, such findings as were made were perverse and irrational, in that the suggestion that the Appellant had not been harmed in Pakistan, could not stand because at paragraph 10.12, the judge had found that one of the reasons that the Appellant was not believed was that his family had not been harmed. However, it was not the Appellant's case that his family would definitely be harmed. His case was that they would not be so harmed if he left Pakistan which was the reason that he did in fact do so.
7. Third, the judge failed to give adequate reasons for finding this on a material matter, such as having speculated as to the murder charge. The judge said (at paragraph 10.12) that the murder charge was "not manufactured against the Appellant by [MA] but arose in some other way". However, if the Appellant's general credibility had been accepted (at paragraph 10.11) then this finding did not sit well with that suggestion.
8. Fourth, the judge failed to give adequate reasons as to why [MA] would want to indefinitely detain the applicant, rather than silence him by removing him from Pakistan. The Appellant had a previous friendship with [MA].
9. For his part, Mr Tufan, appearing on behalf of the Secretary of State, submitted that the Appellant arrived in 2005. He did not make an asylum application until 2015. In fact, he went back to Pakistan for eighteen days. He maintains he was mistreated. He maintains he was mistreated even in the UK. However, there is police evidence available showing that the Appellant had been drunk and disorderly and had been arrested by the Metropolitan Police in London itself. The reality was that the judge had been very lenient towards the Appellant given his own conduct here. The CMC Report confirms his drunkenness in the UK. Just because the judge had accepted that the Appellant had a subjective fear (at paragraph 10.12) did not mean to say now that he would face a real risk of persecution upon return, as that was an issue that went to "objective fear" and the judge was not satisfied that such a state of affairs would eventuate.
10. In reply, Mr Ferguson submitted that the Appellant did not claim asylum earlier because he was afraid for his family and he had the money to live upon in the UK.
No Error of Law
11. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. In R (Iran) [2005] EWCA Civ 982, Lord Justice Brooke made it clear that, "it is well known that 'perversity' represents a very high hurdle'" (at paragraph 11). His lordship stated that, "far too often practitioners use the word 'irrational' or 'perverse' when these epithets are completely inappropriate" (paragraph 12). This is a case where the judge has rightly observed that the Appellant has never suffered any physical assault in Pakistan. His only assault is the one he suffered in the UK and there is no evidence whatsoever as to those assailants being people who had been set upon the Appellant by the authorities in Pakistan or by [MA] himself.
12. As the judge observed, the assertion that "[MA] must have been responsible for the initial accusation" was one which "is speculative and is not supported by any objective evidence" (paragraph 10.12). The judge also observed that if [MA] was as powerful as the Appellant claims him to be then he would have had sufficient connections to have had the Appellant arrested and detained for an indefinite period, "yet he chose not to do so despite the deterioration in their relationship and the number of occasions on which he had been denounced by the Appellant in social gatherings" (paragraph 10.12).
13. These are findings of fact that were perfectly open to the judge on the evidence before him. The findings do not show such conclusions to have been perverse or to have been irrational. Furthermore, the judge also noted that the Appellant was now claiming to have a fear in relation to events that occurred eleven years ago and this too was improbable in the light of the evidence (paragraph 10.12). Much has been said about the Appellant's "subjective fear". However, the judge eventually concluded (at paragraph 10.13) that, "I am not satisfied that he has established that his subjective fear on that account is objectively well-founded".
Notice of Decision

There is no material error of law in the original judge's decision. The determination shall stand.

No anonymity direction is made.

Signed Dated

Deputy Upper Tribunal Judge Juss 12th October 2016