Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00597/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 9 February 2017
On 27 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MURRAY

Between

MANI ALI YAYRI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Olabamiji, Ethnic Minorities Law Centre, Glasgow
For the Respondent: Mr Matthews, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Iran born on 14 April 1993. He appealed against the decision of the respondent dated 8 January 2016 refusing him asylum, humanitarian protection and refusing his claim on human rights grounds. His appeal was heard by Judge of the First-Tier Tribunal Ferguson on 14 October 2016. He dismissed the appeal on all grounds in a decision promulgated on 9 November 2016.

2. An application for permission to appeal was made and permission to appeal was granted by Designated Judge of the First-Tier Tribunal Shaerf on 20 December 2016. The first three grounds challenge the Judge's assessment of the appellant's credibility and the fourth ground takes issue with the Judge's treatment of the expert report. The permission states that the Judge may have been entitled to be critical of the need for and the deficiencies in the expert report, but at paragraph 19 he indicates that the appellant's account may be plausible. He then bases his adverse credibility finding on the appellant's inability to identify the points of the compass. This matter was not pursued at the hearing. The other grounds for the adverse credibility finding appear to be that the appellant did not claim asylum in Turkey or Bulgaria and the absence of corroborative evidence. The permission states that these are arguable errors of law.

3. There is a Rule 24 response. This states that the Judge has given clear reasons for his findings and with regard to the expert report, credibility cannot be outsourced to an expert. It remains a matter for the First-Tier Tribunal Judge who has to assess the evidence before him. In this case the Judge directed himself to Dr Van Engeland's report at paragraphs 17 and 20 and at paragraph 19 he considered the opinion of this expert but the ultimate decision of credibility was for the Judge to make. The response states that the Judge's reasons for coming to his decision need refer only to the main issues in dispute not every material consideration and there is nothing in the decision to show that in this claim a different decision could have been reached by the First-Tier Tribunal Judge.

The Hearing

4. The appellant's representative submitted that he is relying on the grounds of application and the written submissions in the appellant's bundle. He submitted that the First-Tier Judge failed to give due consideration to the expert report and has not given adequate reasons for this. I was referred to paragraphs 17 and 20 of the decision which refer to the expert report and the fact that mules are the most used animals in Iranian Kurdistan. Paragraph 20 refers to the system for registering mules in the area. The Judge points out that the expert makes no reference to this so the only evidence on this important point is the appellant's oral evidence. The Judge is not satisfied with the appellant's evidence about this and it is not supported by the expert report.

5. I was then referred to paragraph 71 of the asylum interview in which the appellant states that he knows east and west but does not know north and south. The representative submitted that the appellant is illiterate and this statement is perfectly credible. At paragraph 9 of the interview the appellant is asked "Where geographically is Nezhmar village found in Iran?" The appellant answers "In the south of Iran near to Marivan". The appellant now states that he at no time mentioned north or south when he was asked question 9. What he did was describe the place to the interpreter and the interpreter must have said in the south of Iran.

6. At question 76 the appellant was asked if the two men approached from the direction of Iraq and he said yes and they went back in the same direction. The representative submitted that as the appellant is illiterate there was no reason for the Judge not to believe that he would not know north and south. He submitted that the judge should not have reached the conclusion he did.

7. The representative submitted that the Judge found the appellant not to be plausible. The judge states at paragraph 21, that the appellant does not claim to have real knowledge of the chain of events and is guessing them. The representative submitted that the Judge failed to have regard to the evidence of the appellant at question 60 of the interview when he stated that he was given information by Hassan Babzada. The judge found that two hours would not be sufficient time from the gunshots to the state agents arriving at his parent's house, but the representative submitted that the appellant lived in a very small village and it could easily have taken only two hours from the gunshots to the state agents arriving at the appellant's house. I was referred to the expert report at paragraph 21 which refers to the intelligence and security forces in Iranian Kurdistan constantly monitoring and controlling the whole population, their purpose being to intimidate and humiliate the Kurds and their supporters. The representative submitted that the Judge did not consider the appellant's interview record. The appellant was asked at question 60 when he first had an encounter with the Iranian Democrat Party and in the appellant's answer he mentions in detail his parents being taken and then released. The representative submitted that based on the objective evidence KDP members are often arrested and the appellant's account is not lacking in credibility. He submitted that had the Judge properly considered the appellant's answers at interview he would have reached a different decision.

8. With regard to the credibility issue and Section 8 of the Asylum and Immigration Treatment of Claimants etc Act 2004, he submitted that the appellant gave good answers as to why he did not claim asylum in Turkey or Bulgaria and he submitted that the Judge was wrong to find that Section 8 applies.

9. I was referred to question 112 of the interview. The appellant states that he was arrested in Bulgaria and was in prison for 10 days and then put in the back of a lorry and sent to the jungle where he stayed for one month. He submitted that the appellant did not claim asylum in Turkey because he is Kurdish and Kurds have problems there.

10. At paragraph 26 of the decision the Judge states that there are no compelling circumstances justifying a grant of leave outside the Rules, but I was referred to the expert report at paragraph 48 which refers to risk on return. The expert states that returnees are held for a few days until it is clear they have not been involved in political activity. If an appellant is or has been politically active in Iran or abroad they will be punished. The representative then withdrew this submission as the fact that the appellant left illegally is not mentioned in the grounds.

11. The representative submitted that the Judge's credibility findings are based on inadequate reasoning. I was referred to paragraph 21 of Lord Brodie's Judgment in the Court of Session in 2005 CSOH73. The representative submitted that the dismissal of this appeal is based on the Judge's decision that the appellant's account is not credible but this is an illiterate appellant and the expert report refers to the power of the intelligence services in Iran and the Human Rights Watch Report notes that most human rights violations in 2015 in Iran were perpetrated by the security and intelligence forces. There are abuses by these forces reported as taking place in the Kurdish areas of Iran. He submitted that the appellant's evidence is that he was perceived to be politically active because the KDPI used his mule, so on return he will be at risk.

12. He submitted that this appellant is Kurdish, he left Iran illegally and he is perceived to be a KDPI sympathiser and so on return he will be at risk.

13. The Presenting Officer submitted that this appeal is on a point of law. She submitted that the submissions by the appellant's representative appear to be a disagreement on findings of fact. No errors of law have been referred to.

14. She submitted that what has to be decided is whether the Judge erred in law and the appellant's claim at its highest is, that based on the facts of this case, a different conclusion might have been reached by the Judge.

15. The Presenting Officer referred me to ground 1 of the grounds of application and paragraph 21 of the Judge's decision. He submitted that the Judge found the appellant not to be truthful. The appellant admitted that he has no real knowledge of the chain of events, he is just guessing. The Judge finds that the appellant appears to have created a chain of events to explain his decision to leave when there was no need for him to do so.

16. At paragraph 24 of the Judge's decision he finds that the appellant has not made a genuine effort to substantiate all aspects of the case and he finds that his claim is not plausible and his general credibility not established. At paragraph 20 he notes the appellant's explanation of how mules are registered in Iran but the expert has not supported this account and if the appellant's account is not accurate how could anyone know the mule that the KDPI were using belonged to the appellant? Apparently the tag which the appellant states is attached to each mule can be removed. He submitted that the Judge was right to be sceptical about this point and had good reason to find that the appellant was not credible.

17. The appellant had no first hand knowledge of the events as he was not there. The Judge states that he believes the appellant has made up his account to explain why he left Iran when there was no need for him to do so. That is why he rejected the claim. The presenting officer submitted that when the Judge's decision is analysed his reasons for dismissing the appellant's claim are clear and comprehensive.

18. With regard to the appellant not knowing the points of the compass, the Presenting Officer submitted that it is true that the appellant is illiterate but this is not a compelling ground. Being illiterate does not mean that you are stupid. The Judge was unimpressed with the appellant's evidence about this. From the appellant's interview it is clear that the appellant knows about east and west so it is not difficult to understand why the Judge found that he would therefore know north and south.

19. The appellant has stated that there were mistakes in the interpretation of his evidence but there is no evidence of this.

20. With regard to the Section 8 point and the fact that the appellant did not claim asylum in Turkey or Bulgaria, the Judge has not given much weight to this. At paragraph 23 of the decision the Judge states that this is not a factor which would be determinative of the claim but that it adds weight to the conclusion that when the appellant left Iran he was looking for a more prosperous life in the UK. He submitted that there is no evidence that Kurds are persecuted in Turkey.

21. With regard to ground 4 he submitted that there is no error. This deals with the plausibility of the appellant's claim. The Presenting Officer submitted that when the Judge's findings about plausibility are read as a whole there is no contradiction.

22. The Presenting Officer submitted that no error of law has been identified. All the challenges are based on findings of fact and the Judge's decision should stand.

Decision and Reasons

23. I have to decide if there is an error on a point of law in the Judge's decision. With regard to what happened to the appellant's parents after his mule was stolen, the appellant's evidence is that he was told this by Hassan Babzada, who his uncle sent to the village to find out what had happened. The appellant therefore has no first hand knowledge of what happened. This is not an error on the part of the Judge.

24. With regard to the second ground and the Judge's adverse credibility findings, it is not illogical that the Judge would find that if someone knows east and west they will know north and south, even if they are illiterate. He clearly does not accept the appellant's explanation of his answer to question 9 of the interview which was that Nezhmar village is found in the south of Iran near to Marivan. The appellant has explained this by saying that the interpreter must have said that and that is not what he, the appellant, said. There was nothing before the Judge to indicate that there were any problems with the interpreter.

25. With regard to ground 3, the Section 8 issues were not a determinative point but were considered in the round with the rest of the appellant's evidence.

26. With regard to ground 4 it is clear from the decision that the Judge found the appellant's account not to be plausible. He has clearly considered the expert report but finds that it is lacking, particularly relating to the way mules are registered in Iran.

27. When all the grounds are considered I find that the Judge has explained his findings adequately and that there is no material error of law in his decision.

Notice of Decision

28. As there is no material error of law in the Judge's decision, his decision promulgated on 9 November 2016 must stand.

29. Anonymity has not been directed.

Signed Date

Deputy Upper Tribunal Judge Murray