Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00656/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 December 2016
On 5 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

S A M
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. A. Syed-Ali
For the Respondent: Mr. P. Armstrong, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Mayall, promulgated on 14 September 2016, in which he refused the Appellant's appeal against the Respondent's decision to refuse to grant asylum.
2. I make an anonymity direction continuing that made in the First-tier Tribunal.
3. Permission to appeal was granted as follows:
"The application for permission to appeal, which was made in time, contends in particular that the judge misapprehended the date of an affidavit from the appellant's ex-wife about his divorce. The divorce took place in 2010 but the judge took as a point against the appellant's credibility that the affidavit was dated 2015. The application states that this is the date of the translation.
It is arguable that the judge misconstrued the date of this document when relying on this at para 60 as part of the reasoning for making an adverse credibility finding. The other grounds of the application, although on the face of them carrying less weight, may also be considered arguable."
4. The Appellant did not attend the hearing. I heard submissions from both representatives following which I reserved my decision.
Submissions
5. Mr. Syed-Ali relied on the grounds of appeal. He submitted that it was a narrow point. In paragraph 60 there had been misconstruction of the evidence. He accepted that it was open to the judge to consider the weight to be apportioned to the evidence as set out in paragraphs 61 and 62, however the finding relating to the document was determinative of the reasoning in the mind of the judge. The judge's finding relating to the document had a knock-on effect to the way that he had considered the discrepancies. For example, he noted the failure of some witnesses to attend, but failed to give any credit to those who did attend. The fact that two witnesses had attended the hearing must be given some weight.
6. Further, the discrepancies relating to the narrative of a few hours at the club were not determinative. In the mosaic of the facts, all of the evidence could fit together. However, the findings relating to this evidence had become determinative of the outcome because of the wrong treatment of the document in paragraph 60. The original document was dated 2010, not 2015. The weight given to the evidence was determined by the misconstruction of the facts relating to this document, which had not been explored properly at the hearing.
7. Mr. Armstrong relied on the Rule 24 response. He submitted that there were several reasons why the judge had dismissed the Appellant's appeal and the reasoning in paragraph 60 was just one of those reasons. The judge had found that there were problems with the evidence early in the decision and this had fed into the judge's findings. Paragraph 60 was not material. He submitted that there was no particular finding in paragraph 60, but it was just a recording of what had happened at the hearing. It highlighted the fact that the Appellant could not have received the document in 2010 if it had been dated 2015.
8. It had been accepted that the weight to be given to the evidence was open to the judge. The Appellant had waited for five years before claiming asylum. It was open to the judge to find the witnesses not credible. These findings were not material. The judge's overall findings were based on the totality of the evidence. He had listened to the evidence, considered it in the round and had found that the Appellant was not credible due to discrepancies in the evidence. There had been only one issue before the judge which was whether or not the Appellant was gay. The decision did not involve the making of a material error of law.
9. In response Mr. Syed-Ali accepted that weight was a matter which was open to the judge but he had given inappropriately heavy weight to his findings which followed on from the erroneous finding regarding the documentary evidence. It had not been submitted that the document was a forgery, but the fact that the judge considered that the Appellant could not have received it in 2010 as claimed, if it had been dated 2015, must have weighed heavily on the judge's mind when he came to his other credibility findings.
Error of Law Decision
10. The judge turns to his assessment of the evidence and findings in paragraph 59 of the decision. In paragraph 59 he states "I regret that I did not find the appellant or the witnesses to be credible or honest witnesses". He gives no reasons, but turns immediately to the document which is at the centre of this appeal. In paragraph 60 he states:
"The appellant has put forward a document purporting to be an affidavit relating to divorce by a wife to (sic) her husband. It is in English and it bears the date of 2015. The appellant claimed that he had received this document shortly after his arrival in 2010. His evidence about this then became confused. He claimed that he had the original of the document but had not produced it."
11. Although the judge refers to the fact that the Appellant had not produced the original of the document, it is not clear from this paragraph whether he is treating the "affidavit" mentioned in the first sentence to be an original or a translation. I have considered the evidence regarding this document as set out in paragraphs 30 and 31 of the decision. It appears from the recording of the evidence set out in these paragraphs that there was some confusion about the date of the document and when the Appellant had received it. There was also some confusion about which language it was in. However, there are no findings in these paragraphs, which just record the evidence.
12. I find that there are no clear findings either in paragraph 60. The judge refers to an apparent discrepancy in the fact that the document is dated 2015 although the Appellant claims that he received in 2010, but he makes no findings on the evidence which he says then "became confused". He makes no reference back to paragraphs 30 and 31. He makes no findings regarding the original document and the failure of the Appellant to produce it, just recording that the Appellant claimed to have it, but had not produced it. The judge states that the document "purport[s] to be an affidavit", but it is not clear if he is referring to a translation or an original document. According to the evidence, the original was not before the judge, but it is not clear from paragraph 60 whether the judge considers that he is looking at an original affidavit or a translation. He makes no findings as to whether the Appellant claimed to have received the translation in 2010, or the original. I find that it is not clear from this paragraph that the judge is clear as to which document he is considering.
13. While it appears that the evidence was not entirely clear and that there was some confusion regarding the date of the document, and the date of the translation, the judge has made no findings regarding this evidence. He has merely restated the fact that there was confusion. Although the judge makes no clear findings on this document, it is clear that it is a matter which he considers of some importance, as it is the first issue to which he turns in addressing the credibility of the Appellant and the witnesses.
14. I find that the judge's failure to make a finding as to whether or not this document was the document which it purported to be, and was dated when it purported to be dated, is an error of law given the importance that he attaches to it. I now turn to whether or not this error is material.
15. It was accepted by Mr. Syed-Ali that the weight to be given to various matters of evidence is a matter for the judge. However, it was his submission that, having made an error of fact regarding the document, this infected the credibility findings.
16. In paragraph 61 the judge states that no evidence has been provided from the Appellant's previous partners, and that the people who originally wrote letters of support did not attend to give evidence. He states that he finds it unlikely that they would all be unavailable. In paragraph 62 he states:
"The Appellant did field two witnesses. There was (sic), as it seems to me, considerable discrepancies between their evidence."
17. He then focuses on one occasion when they went out clubbing. He refers to a "huge discrepancy" as to what had happened. It appears that this "huge discrepancy" concerns who left which club when and who was in attendance at the club on this one occasion. He states in paragraph 63 that there were discrepancies as to when this meeting took place. In paragraph 64 he states:
"I gained the distinct impression whilst they were giving their evidence that they had learned from a script but they did not necessarily know all the details."
No reasons are given for this finding.
18. I find that, while it was of course open to the judge to find there were discrepancies in the evidence, he has given a disproportionate amount of weight to the evidence of one event. This follows on from his erroneous treatment of the divorce document.
19. In paragraph 65 the judge turns to the issue of the Appellant's previous marriage and the Appellant's evidence of his marriage. In paragraph 66 he states that he found it implausible that if he were living openly as a gay man his nephew with whom he lived would not have become aware of this. This is all of the evidence which the judge considers when finding that the Appellant lacks credibility, and these findings are made against the backdrop of the misconstruction of the divorce document.
20. I find that, while there are other reasons given for why the judge does not find the Appellant credible, these all flow from the misconstruction of the document. Given the importance of the document which shows when the Appellant was divorced from his wife, I find that his failure to make findings on this document, and also his failure to make clear whether or not he was aware that he was considering the translation or the original, affects the weight which he then gives to other matters in the evidence before him. I therefore find that the error of law is material.
21. As submitted by the representatives at the hearing, were I to find that the decision contained an error of law, given the extent of the fact-finding necessary, this appeal should be remitted to the First-tier Tribunal. I have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, and having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal.

Decision
22. The decision involves the making of a material error of law and I set the decision aside.
23. The appeal is remitted to the First-tier Tribunal for rehearing.
Direction Regarding Anonymity - 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 4 January 2017

Deputy Upper Tribunal Judge Chamberlain