Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00570/2016

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly Decision & Reasons Promulgated
On the 10th April 2017 On the 20th April 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
MR A. N.
(anonymity direction made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Hussain (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 Farrelly promulgated on the 9th October 2016, in which she dismissed the Appellant’s protection appeal on asylum, Humanitarian Protection and Human Rights grounds.
2. The Appellant is a citizen of Iran who was born in December 1990. Although Judge Farrelly found that it was a possibility that the Appellant did not have faith in his religion of Islam, she did not find it credible that he would engage in behaviour which would bring him into trouble with the authorities, such as eating in a car during Ramadan and that it was highly improbable that he would place himself at risk by arguing with clerics in public and then pushing one of them such that his headdress fell off. She found that there had been no evidence that the Appellant had been sentenced to 6 months’ imprisonment as claimed. She further found it incredible that he would have incriminating material on his computer, such as a copy of Salman Rushdie’s “Satanic Verses” at home. She dismissed his asylum appeal.
3. The Appellant has sought to appeal against that decision for the reasons set out within the Grounds of Appeal. That is a matter of record and is therefore not repeated in its entirety here, but in summary, it is argued that the Appellant sought to appeal against the Respondent’s decision on the basis that he claimed that he was an atheist. It was argued that the Judge had not made findings upon the risk of return on what was argued to be an accepted finding that the Appellant was an atheist. In the second ground of appeal it is argued that the Learned First-tier Tribunal Judge erred in failing to make a proper assessment of the Appellant’s online activities relating to his atheism, which included Facebook pages and comments such as “God is the name people give to the death of their curiosity” and that the Judge had not taken account of the remainder of the online material. It is argued that the Judge failed to take account of relevant evidence in that regard and failed to reconcile his online activities with the risk identified in the case of AB and Others [Internet Activity – State of Affairs] [2015] UKUT 257 and that the act of returning someone creates an “pinch point”, so that returnees brought into direct contact with authorities in Iran who have both the time and inclination to interrogate them and that the Appellant would then be likely to be asked about his internet activity which would give rise to a real risk of persecution.
4. Designated First-tier Tribunal Judge McDonald granted permission to appeal on the 7th December 2016.
5. In the Rule 24 reply it is argued by the Respondent that the First-tier Tribunal Judge directed herself appropriately and that the Appellant’s actual claimed activities were perceived as being incredible and the Judge was not bound to follow HJ (Iran) v SSHD as the Judge found that the claimed activities did not occur.
6. It was on that basis the case came before me in the Upper Tribunal.
7. At the Upper Tribunal appeal hearing Mr Hussain on behalf of the Appellant relied upon his Grounds of Appeal. He argued that Judge Farrelly had simply stated that it was a “possibility” the Appellant did not have faith in his religion at [17] and that he may have had “doubts about his religion” at [24] and that he “may have had doubts about believing in the religion he was brought up in” at [24] and that he may have expressed views to close friends and family at [25]. He submitted the Learned Judge had not made clear findings in that regard. He argued that had the Judge properly taken account of the full extent of the Facebook evidence, then the Judge would then have concluded that the Appellant was an atheist. He argued that the Judge had not properly engaged with the Facebook pages, and although it was said that the print quality was poor by the Judge, they were in fact legible. He submitted that it was open to an Appellant not to hold a religious belief and that the Appellant’s online activities will place him at risk. He said that the Judge had failed to conduct a balance of weighing up of the evidence and had failed to properly consider the Country Guidance.
8. He submitted that when Designated First-tier Tribunal Judge McDonald had granted permission to appeal on the 7th December 2016, he had noted that there was arguably a lack of factual findings by the Judge particularly as to whether or not the Appellant was an atheist, which linked to the points stated in the Grounds of Appeal. He argued that being returned the Appellant would be at a pinch point where he would be asked to produce his Facebook account and that he would be asked questions and the Appellant not required to lie and that there would be a real risk that he would have to disclose his atheism. He argued that the Tribunal had not grappled with that scenario.
9. In his submissions, Mr McVeety on behalf of the Respondent argued that it was an “oddly worded determination” with reference to there being a “possibility” the Appellant did not have faith in his religion and that “the Appellant may have doubts about believing in the religion he was brought up in,” but argued that the Judge had rejected the Appellant’s claim that he was an advocate for atheism. However he conceded that the Judge had failed to properly consider the Facebook postings, but argued that the Appellant could take down the Facebook postings such that he would not be at risk upon return. However he accepted and conceded that the determination was vague as to whether or not the Appellant was in fact an atheist and that the wording of the determination had “muddied the waters”.
10. Both legal representatives agreed that if there was a material error of law, the case should be remitted back to the First-tier Tribunal for a hearing de novo before a differently constituted Tribunal. I reserved my decision.
My Findings on Error of Law and Materiality
11. Although it was argued within the Grounds of Appeal that there was an accepted finding that the Appellant was an atheist, as quite properly stated by Designated First-tier Tribunal Judge McDonald on the 7th December 2016 in granting permission to appeal, it is not clear that there was such an accepted finding. Paragraph 28 of the refusal letter has stated specifically that it was not accepted that he was an atheist and that he faced significant problems as a result. There is no evidence of any such concession having been made by the Respondent at the First-tier Tribunal hearing, and indeed, this would be inconsistent with the way in which Judge Farrelly approached her consideration as to the extent of the Appellant’s religious beliefs. I do not agree that the case proceeded on the basis of there being an accepted finding that the Appellant was an atheist.
12. I consider that the findings of Judge Farrelly are somewhat vague in respect of her findings at [17] that there is “a possibility the Appellant does not have faith in his religion” and that at [24] “it is possible that the Appellant may have doubts about believing in the religion he was brought up in”. The Learned First-tier Tribunal Judge has not specifically found as to whether or not the Appellant was an atheist as claimed, and in that regard. When considering the Facebook evidence at [21] she said that the print quality was very poor and postings were made from July 2015 onwards and that there was very little discussion, but primarily the documents consisted of third party slogans, she stated that the most strident of which was “God is the name people give to the death of their curiosity”. However, she concluded that generally they do not appear particularly offensive although she appreciated that significant offence could be taken from innocuous events.
13. Although the Facebook postings contained within the Appellant’s bundle were not well photocopied they were largely legible, and it was clear that the Appellant did have a Facebook page within his own name, where in respect of each posting it was said that he had shared “Iranian atheists and agnostics photos” and that there were slogans and postings relating to Ireland having an atheist majority population, a slogan that “God is the name people give to the death of their curiosity”, “Why would you pray after a tragedy to a God who did nothing to prevent the tragedy?”, “All human misery started with this: ‘God said’!”. In that regard, I do accept and find as a fact that Judge Farrelly has not taken account of all of the relevant evidence from the facebook entries, as conceded by Mr McVeety, and I find has not properly weighed that evidence into the balance, when considering whether or not the Appellant is atheist as claimed, irrespective as to whether or not she then went on to find that the Appellant had manifested such atheist beliefs in that manner claimed. Nor has she considered how, if the Iranian authorities were to find out about the Appellant’s Facebook postings, that would be viewed by them, and has simply stated that such postings do not appear particularly offensive, although she appreciates that significant offence can be taken from innocuous events. She has not specifically considered how such postings would be viewed by the Iranian authorities, if they were to see them.
14. Although in that regard Mr McVeety argued that the postings could be taken down before the Appellant returned to Iran, there has been no analysis by Judge Farrelly as to whether or not that was likely or could happen, or as to whether or not a trace would still be left that could be found by the authorities. In any event, she has not fully taken account of that evidence, in determining the initial question as to whether or not the Appellant was atheist as claimed. I therefore do find that the failure to take account of material evidence is a material error of law, such that the decision of Judge Farrelly should be set aside. There are not clear findings as to whether or not the Appellant is atheist as claimed, and whether or not this would create a risk upon return, irrespective as to whether or not he had manifested his lack of religion as claimed.
15. I therefore do find that the decision of First-tier Tribunal Judge Farrelly does contain material errors of law and is thereby set aside. Given the extent of the fact finding required it is appropriate for the appeal to be remitted back to the First-tier Tribunal and for there to be a de-novo hearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Farrelly.

Notice of Decision
The decision of First-tier Tribunal Judge Farrelly does contain material errors of law and is set aside.
The case is remitted back to the First-tier Tribunal for re-hearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Farrelly.
I do make an anonymity direction, given the previous anonymity direction made by First-tier Tribunal Judge Farrelly. 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

Deputy Upper Tribunal Judge McGinty Dated 10th April 2017