Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00607/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
On 25th August 2016
On 5th September 2016

Before

upper tribunal JUDGE MACLEMAN

Between

AMANUIL [Y]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr G Dewar, Advocate, instructed by Peter G Farrell, Solicitors
For the Respondent: Mr Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant claims to be a citizen of Eritrea, born on 1st June 1987. He has not sought anonymity. He appeals to the Upper Tribunal against a determination by Judge Lea, promulgated on 18th March 2016, dismissing his appeal against refusal of recognition as a refugee from Eritrea.
2. Paragraphs 1 to 7 of the appellant's grounds of appeal to the Upper Tribunal criticise the judge's finding that inability to speak Tigrinya (or to speak more than a little Tigrinya) was adverse to his account.
3. The grounds at paragraphs 8 and 9 go on to make a challenge to paragraph 26 of the determination, where the judge recorded that the appellant said in oral evidence that:
"?. his father and the pastor were detained and no one knew where they were. He has not adequately explained why his mother would be able to so easily get him released but not be able to get his father released."
4. The notes and recollection of the author of the grounds indicate that the appellant was asked:
Q. Why not know where the father is?
A. My father used to work in the church with the pastor.
5. This is said to be "a clear explanation ? why the father's treatment was different from that of the appellant, because the appellant did not work for the pastor and was merely a member of the congregation".
6. Paragraph 10 of the grounds is directed against paragraph 28 of the determination, where the judge said that the appellant has "not given any explanation as to why he left his wife (and presumably child) in Sudan in 2015." It is said that the appellant was not asked for an explanation, and that the Tribunal's approach was contrary to HA & TD v SSHD (No. 2) [2010] CSIH 28.
7. On 13th July 2016 UT Judge Blum granted permission, saying at paragraph 1 of the grant that the judge accurately recorded the evidence and was entitled to find as she did on the appellant's knowledge of Tigrinya. The points about the appellant leaving his wife and child in Sudan, and about his explanation for his release, were thought to be arguable. The representative was expected to provide his original record of proceedings at the error of law hearing.
8. Mr Dewar submitted firstly on procedural unfairness. He relied upon HA and TD, in particular at paragraphs 6, 7, 8 and 31. The judge's decision at paragraphs 28 and 30 clearly took the absence of explanation as one of the reasons for finding against the appellant. Fairness depended always on the facts and circumstances of the particular case. As the lack of explanation was an essential component of the outcome, it was unfair that the point had not been put to the appellant.
9. Mr Dewar took as his second point the judge's failure to consider the explanation which could be derived from the record kept by the appellant's representative at the hearing, as quoted in the grounds, and as confirmed by a written copy. The handwritten note showed that this had been the subject of a submission, it having been put to the judge that the appellant's father worked. This appeared to be an explanation of why one could escape and the other could not.
10. Mr Dewar's third point was derived from paragraph 4 of the grant of permission, where the judge said that there was little analysis by the judge in rejecting the appellant's account where the errors recorded at interview about his knowledge of Eritrea. This went to paragraph 27 of the decision, where the judge said that she did not find the appellant's explanation in his statement adequate, given that he "could have got a lot of his information from the internet". Mr Dewar referred to Koca v SSHD [2005] SLT 838 at paragraph 19, where the court held that the requirement for a fair hearing was not confined to the actual conduct of the hearing itself before a judge but applied also to the process whereby the judge reached her decision. An appellant had to be informed adequately of why his case did not succeed, which required the giving of intelligible and adequate reasons. Mr Dewar submitted that the analysis by Judge Lea at paragraph 27 was not of a sufficient standard to meet these criteria.
11. Finally, Mr Dewar said that there was an issue in relation to language in that the judge ignored the evidence in the form of a linguistics report but went instead on a fact-finding exercise of her own, a matter beyond her remit.
12. Mr Matthews in response firstly dealt with the language analysis point. He submitted that there was nothing in this case along the lines of MN and KY, referred to in the grounds. This was a matter of the judge reaching a view of the languages actually spoken by the appellant and the languages which he would have been likely to speak, according to the history he gave of himself. The expert report was not overlooked. It was referred to at the end of paragraph 25. The appellant's inability to speak Tigrinya had some significance. As Tigrinya was the language spoken by his parents and would have been his primary or sole language at least until the age of 4, there was no factual or legal error. The grounds claimed that the appellant's evidence in this respect had been overlooked but that was incorrect; it was referred to at various parts of the decision, in particular paragraph 18.
13. Regarding the challenge to the adequacy of reasoning, Mr Matthews submitted that judges were not obliged to give endless series of reasons for reasons. The appellant had been disbelieved in part because of the errors in his professed knowledge, for which he offered no adequate explanation. There was no need to recite what both sides said on the point, or to analyse any further. The judge's reasoning was plain.
14. Regarding the error based on the representative's record of proceedings, Mr Matthews said that this sought to make a great deal out of very little. He accepted that the record kept by the appellant's representative fitted with the record on the Home Office file. What the First-tier Tribunal had said was that there was no adequate explanation of why the appellant escaped, but not his father. The judge rejected the appellant's account of his escape for a number of reasons, including the absence of an explanation of where the money came from. The fact that his father worked for the pastor was not shown by the appellant to have any bearing on whether it would be more difficult for him to escape. The judge also founded on other reasons, such as inconsistencies in the appellant's account described at paragraph 24, to which the grounds made no challenge.
15. On procedural unfairness, Mr Matthews submitted that the judge had been entitled to note the absence of explanation on a matter which obviously cried out for one. This was not a matter of taking the appellant unfairly by surprise, but simply part of the evaluation of his account. It was also notable that now that the matter had been raised, the appellant did not attempt to offer any explanation. His account glossed over the time he had spent in Sudan, and the absence of any reason for suddenly deciding to leave after spending a dozen years there. There was nothing in the grounds to justify setting aside the determination.
16. Mr Dewar requested and was granted a short adjournment to take instructions before responding.
17. On resumption of the hearing, Mr Dewar said that the purpose of the adjournment had been partly to check over the interview record. This ran to 174 questions and answers. A significant aspect of the Home Office submission had been based on the point that there was no explanation of where the money came from to pay the agent. Perusal of the record showed that the appellant had not been asked about that, although it was now said to be central (Mr Matthews interjected, with justification, that such had not been his point). The record also showed that the appellant had not been asked at interview why he left his wife and child in Sudan. The matter had been noted by the judge, but not put to the appellant. Fairness demanded that a material concern which was the basis of an adverse credibility finding should be put fairly and squarely to the appellant. Absence of such an opportunity negated the proceedings. If there were any requirement to offer an explanation to substantiate the ground, the appellant's position was that he does have an explanation, namely that security agents [presumably of the Eritrean government] operate within Sudan, which is why he left when he did.
18. I reserved my decision.
19. The obligation of fairness does not preclude judges from considering the evidence, written and oral, which has been placed before them and from formulating their reasons for accepting or rejecting it. There is no requirement to pose their every thought for further comment, which would make the process of decision-making endless. The essential is that an appellant should not be taken by surprise on a matter which could not reasonably be anticipated and for which, once asked, he might have a sensible answer.
20. A finding that an appellant has failed to offer an explanation of an obvious point is always open to a judge. It is not her job to coax the appellant into perfecting his evidence.
21. The record of proceedings kept by the appellant's solicitor does not disclose anything which differentiates his ability to escape from his father's, so as to make his account any more likely.
22. The grounds touching on language analysis and on the judge embarking on an exercise outside her field are confused. It was a simple and obvious point that the appellant by his own account might reasonably be expected to be a fluent Tigrinya speaker, so that his lack of ability in that language was adverse.
23. The grounds and submissions in my opinion are upon scrutiny no more than reassertion of the appellant's case and disagreement with the adverse conclusions reached, presented under legal headings. I am not persuaded that this decision is anything less than an adequate explanation to the appellant of why his case did not succeed, or that it is based on any point on which fairness required that the appellant be given a further opportunity. In any event, he has not shown that now these points are fully in the open, he can make any better a case.
24. The determination of the First-tier Tribunal shall stand.

2 September 2016
Upper Tribunal Judge Macleman