Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00800/2016

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 14 February 2017
On 23 February 2017

Before

UPPER TRIBUNAL JUDGE GRUBB
DEPUTY UPPER TRIBUNAL JUDGE CHALKLEY

Between

I S
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr O Manley instructed by Crowley & Co, Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The appellant is a citizen of Afghanistan who was born on 13 April 1984. He is a member of the Sikh religion.
2. On 12 September 2015, the appellant arrived in the United Kingdom with his wife and child and claimed asylum. The basis of his claim was that he lived in Jalalabad with his family where his father owned a shop. The Taliban had visited the shop on a number of occasions and threatened the family if they did not convert to Islam. He claimed that his family, including his parents and brothers, had left Afghanistan with the help of an agent as a result. His parents and brothers had left separately from the appellant and his wife and son. He did not know what had happened to them and he had had no contact with them since they left on 10 September 2015.
3. On 7 January 2016, the Secretary of State refused the appellant's claim for asylum, humanitarian protection and on human rights grounds.
The Appeal to the First-tier Tribunal
4. The appellant appealed to the First-tier Tribunal. In a determination promulgated on 17 August 2016 the First-tier Tribunal (Judges Barrowclough and Davidge) dismissed the appellant's appeal. Although the Tribunal accepted that the appellant was a Sikh from Jalalabad, the Tribunal did not accept that the appellant's account was credible. In doing so, the Tribunal did not accept that the appellant's family had fled Afghanistan and that therefore he would not have a family to return to and support him including the family business.
The Appeal to the Upper Tribunal
5. The appellant sought permission to appeal to the Upper Tribunal on the single ground that the Tribunal had erred in law in finding, contrary to the appellant's evidence, that he had not established that his family had fled Afghanistan.
6. The single ground, set out in paras 2 and 3 of the Grounds of Appeal, is as follows:
"2. It is arguable that the Tribunal has materially erred in law in its consideration of the issue of risk on return ([18] - [22]). At [17], the tribunal accepted that the Appellant has proved that he is an Afghan national from Jalalabad and also a Sikh.
3. In particular, it is submitted that the tribunal has arguably erred in its finding that (contrary to the Appellant's evidence) it seems more likely that there will be some sort of home and support for himself, his wife and child in Afghanistan and at least possibly an occupation available, namely working in the family business ([22]). The tribunal's reasons at [19]-[21] are arguably flawed, in particular its conclusion at [21] that the Appellant's family have not fled Afghanistan. Even if the tribunal had doubts about the Appellant's account of his departure from Afghanistan, it arguably does not follow that the finding that his family have not, in fact, left Afghanistan, is reasonable. The error (if found) is material because an assessment of risk on return could very likely produce a different conclusion if it is found that the Appellant has no family support (or family business) to return to."
7. Permission to appeal was initially refused by the First-tier Tribunal but on 10 November 2016, the Upper Tribunal (UTJ Coker) granted the appellant permission to appeal.
8. On 18 November 2016, the Secretary of State filed a rule 24 notice seeking to uphold the Tribunal's decision and, in particular, on the basis that the Tribunal's adverse finding was properly open to it on the evidence.
The Submissions
9. Mr Manley, who represented the appellant, accepted that the ground of appeal was a narrow one. He submitted that the adverse finding, in respect of whether the appellant's family had left Afghanistan and therefore his circumstances on return, was perverse. Having accepted, despite the Secretary of State's position to the contrary, that the appellant was an Afghan national of the Sikh religion, Mr Manley submitted that it was inconsistent of the Tribunal not to accept the appellant's evidence that his family had, in fact, left Afghanistan and that he would, therefore, have no family support or family business to which to return. Mr Manley placed reliance upon the country guidance case of TG and others (Afghan Sikhs persecuted) Afghanistan CG [2015] UKUT 595 (IAC) at [109]-[111] which, he submitted, provided considerable support to the likelihood that the family shop was no longer available and that he would not obtain employment on return.
10. Mr Kotas, on behalf of the Secretary of State submitted that the Tribunal's adverse findings in paras 20 and 21 were properly open to it for the reasons given, even having accepted that the appellant was an Afghan national of the Sikh religion. Mr Kotas submitted that the country guidance case of TG and others recognised that in general members of the Sikh community did not face a real risk of persecution or serious ill-treatment. However, whether a particular individual did face such a real risk was a fact-sensitive exercise which the Tribunal had properly carried out in considering the appellant's circumstances on return including the educational needs of his child.
Discussion
11. We begin with the Tribunal's determination. Having set out the evidence in some detail at paras 7-16, at para 17 the Tribunal accepted that the appellant had established that he was an Afghan national from Jalalabad and a member of the Sikh religion. That is not now contested. Then at para 18, the Tribunal turned to the issue of risk on return as follows:
"18. That brings us to the issue of risk on return. The essential background is set out in the January 2016 Country Information and Guidance. In general, members of the Sikh and Hindu communities do not face a real risk of persecution or ill-treatment such as to entitle them to a grant of international protection on the basis of their ethnic or religious identity, per se. Personal circumstances may however put an individual member of those communities at real risk of persecution upon return to Afghanistan. The ability to access accommodation, employment or a means of financial support for himself and his family, the possible difficulties, including seizure or acts of violence in carrying on the traditional pursuit of a trader or shopkeeper, the availability of support from the local Gudwara, and access to places of worship and an appropriate education for his child are all matters to bear in mind when considering individual cases such as the Appellant's.
12. That self-direction reflects, in large measure, the country guidance in TG and others at [119] and, in particular at [119(ii)] and [119(iii)]. The Upper Tribunal's country guidance is as follows:
"119. We summarise our findings, relevant to providing country guidance in relation to these religious minorities in Afghanistan, currently living Afghanistan or in relation to which it is proposed they should be returned to Afghanistan as follows:
(i) Some members of the Sikh and Hindu communities in Afghanistan continue to suffer harassment at the hands of Muslim zealots.
(ii) Members of the Sikh and Hindu communities in Afghanistan do not face a real risk of persecution or ill-treatment such as to entitle them to a grant of international protection on the basis of their ethnic or religious identity, per se. Neither can it be said that the cumulative impact of discrimination suffered by the Sikh and Hindu communities in general reaches the threshold of persecution.
(iii) A consideration of whether an individual member of the Sikh and Hindu communities is at risk real of persecution upon return to Afghanistan is fact-sensitive. All the relevant circumstances must be considered but careful attention should be paid to the following:
a. women are particularly vulnerable in the absence of appropriate protection from a male member of the family;
b. likely financial circumstances and ability to access basic accommodation bearing in mind
Muslims are generally unlikely to employ a member of the Sikh and Hindu communities
such individuals may face difficulties (including threats, extortion, seizure of land and acts of violence) in retaining property and/or pursuing their remaining traditional pursuit, that of a shopkeeper/trader
the traditional source of support for such individuals, the Gurdwara is much less able to provide adequate support;
c. the level of religious devotion and the practical accessibility to a suitable place of worship in light of declining numbers and the evidence that some have been subjected to harm and threats to harm whilst access the Gurdwara;
d. access to appropriate education for children in light of discrimination against Sikh and Hindu children and the shortage of adequate education facilities for them.
(iv) Although it appears there is a willingness at governmental level to provide protection, it is not established on the evidence that at a local level the police are willing, even if able, to provide the necessary level of protection required in Refugee Convention/Qualification Directive terms, to those members of the Sikh and Hindu communities who experience serious harm or harassment amounting to persecution."
13. At paras 19-22, the Tribunal went on to consider the evidence and reached findings on the appellant's account, in particular, found that his family had not left Afghanistan and that he would not lack support on return which, on the basis of TG and others, is a significant factor in determining whether he would face a real risk of persecution or serious ill-treatment on return. The Tribunal said this:
"19. The Appellant says that his father and the remaining members of his family have fled Afghanistan and, by inference, that there is nothing and no-one there for him, his wife and small child to return to; that he has had no contact with his father or other family members since he himself left Afghanistan, and that he doesn't know where they are. Has he thus established that he is at real risk of persecution or ill-treatment if returned?
20. In our judgment, there are a number of fundamentally implausible aspects of the Appellant's account which bear on the reliability of that evidence and the existence of such a state of affairs. First, we find it difficult if not impossible to accept that neither he nor his siblings never left their home save accompanied by their father, in the Appellant's case for his entire life in Jalalabad of 31 years; or that he was completely unaware of such basic general knowledge as whether there is an airport or university there. Whilst we bear in mind that the Appellant may well have grown up in a small and tight-knit community, he attended religious school three times a week for approximately 10 years, and helped out in his father's shop, which adjoins their home, to which many members of the local community, and not just fellow Sikhs, would come. It is likely in our view that over the years and in the ordinary course of conversations with others that the Appellant would have become aware of and discussed local life and affairs. Secondly, the Appellant's account is that over that entire period neither his father, himself, nor any other family member was assaulted or the victim of any physical attack: the absence of any such incident, coupled with the ordinary confidence and curiosity of youth would have made it very difficult if not impossible for the Appellant's parents to ensure that neither he nor any of his siblings ever left their home unaccompanied. Yet that is what the Appellant says happened. Above all, it seems very unlikely that the Appellant neither asked nor was told anything at all about his flight from Afghanistan, nor where his parents and brothers were going. We bear in mind that at the time he left that country the Appellant was a grown man aged 31, and that in particular he had a wife and small child for whom he was responsible and who he had to look after. It simply does not ring true, in our judgment, that the Appellant would not have asked where they were going, where his parents were going, how they were to keep in touch, what they were to do and how support themselves, and other equally obvious questions; rather than simply put the fate of himself and his family in the hands of an unknown agent without question. Nor is it likely that there was not at least some conversation about their destination and the possibility of going somewhere closer and easier to get to, for example India, if all that was being sought was a place of safety. Accordingly, we view the Appellant's account of the events leading up to and including his departure from Afghanistan with considerable scepticism.
21. Additionally, and whilst the Appellant gave no evidence as to what (if anything) had happened to his family's home and business, it seems very unlikely that, as he asserts, his father would simply walk away, without any apparent strategy to either secure or sell one or both, from his means of livelihood and a well-established home and business that both he and his father before him had owned and run for many years; particularly since the alleged trigger for their departure was the gradual build-up of pressure over a considerable period of time - two years - and in the accepted absence of any immediate specific threat or emergency; and when neither the Appellant's father nor any member of his family had been attacked, rather than repeatedly requested to convert to Islam. That, it seems to us, casts substantial doubt over whether the Appellant's account that his family have fled Afghanistan is reliable.
22. Bearing all these matters in mind, we are not persuaded that the Appellant has established that he would be at real risk of persecution or ill-treatment if returned to Afghanistan. We do not find his account of his own and his parents' flight from Afghanistan to be credible. It seems more likely that there will be some sort of home and support for himself, his wife and child (and we heard no evidence concerning the Appellant's in-laws) in Afghanistan, and at least possibly an occupation available, namely working in the family business. We bear in mind that there was no evidence of any attempted seizure of the family premises, or of acts of violence relating to it; that there was no suggestion that the Appellant and his family no longer had access to the local Gudwara; and that whilst that may very well not be the force and resource it once was, at least it is in the heart of the remaining Afghan Sikh population. Finally, whilst there may not be the possibility or resources available to educate the Appellant's child privately (and we bear in mind the problems involved in state education for Sikh children), the Appellant himself and all his siblings were apparently restricted to religious education, and it was not suggested that that option is no longer available or appropriate. For these reasons we find that the Appellant has not discharged the burden of proof of having a well-founded fear of persecution for a Convention reason, and that the Appellant's removal would not cause the United Kingdom to be in breach of it's obligations under the 1951 Convention."
14. As we have already indicated, Mr Manley acknowledged that the appellant's ground amounted to a perversity challenge. That, of course, poses a high threshold and a finding will only be perverse or irrational if no reasonable Tribunal properly directing itself could have reached such a finding. However, Mr Manley also supplemented that argument by, in effect, submitting that in para 20 the Tribunal had reached an inconsistent finding in both considering that it was not plausible that the appellant would not for the entire 31 years of his life have not left his home, as he claimed, save accompanied by his father and yet, at the same time, not accept that it was possible that he lacked a basic general knowledge of his home area.
15. We do not accept Mr Manley's submissions. There was nothing inherently perverse or irrational in the Tribunal accepting that the appellant was an Afghan national from Jalalabad and also of the Sikh religion but rejecting his account how he claimed he and his family left Afghanistan.
16. In relation to his claimed nationality and religion, the Tribunal heard from a number of witnesses who spoke to the appellant's nationality and religion (see paras 14-16 of the determination). Their evidence, as recorded by the judge in paras 14-16, focused on the appellant's nationality and religion and not upon the claimed circumstances in which it was said he and his family had left Afghanistan.
17. Further, nothing in the Tribunal's reasoning in paras 19-22 flies in the face of TG and others. The Tribunal was clearly aware of the background of Sikhs in Afghanistan in general. The Tribunal referred to TG and others at para 2 and, in para 4, set out at length the submissions of the appellant's (then) Counsel on the background material, including the discrimination and difficulties faced by Sikhs in Afghanistan.
18. Finally, in relation to Mr Manley's submissions, the Tribunal's reasoning in paras 19-22 was not, in our judgment, irrational, perverse or inadequate to reach the ultimate finding that the appellant had failed to establish his family had left Afghanistan. The only aspect of the Tribunal's reasoning which Mr Manley specifically referred to was that at the beginning of para 20 where the Tribunal considered it implausible that the appellant would not, as he claimed, have left his home in Jalalabad for the 31 years that he lived there unaccompanied by his father. That, in our judgment, was a matter which the Tribunal was properly entitled to consider given all the circumstances including the appellant's age, that he had his own family and that the appellant made no claim that any of his family had ever been assaulted or the victim of a physical attack.
19. It was not, in our judgment, inherently inconsistent for the Tribunal also to take into account, in assessing the veracity of the appellant's account, that he lacked a "basic general knowledge" of his own home area including whether there was an airport or university there. Such knowledge would not, necessarily, only be gleaned by going out in public. Also, whilst this factor did not lead the Tribunal to doubt the appellant's account of where he came from, it was not irrelevant to an assessment of his credibility and the veracity of his account that one part of his evidence was simply implausible. In any event, this reason formed only one of a number in paras 20-21 that led the Tribunal to reject the appellant's veracity concerning the flight of his family and the circumstances he would face on return which, unlike his claim to be an Afghan national of the Sikh religion, was not supported by the oral evidence of independent witnesses at the hearing.
20. The Tribunal's reasoning in para 21 was, in our judgment, sufficient in itself to sustain the adverse factual finding made by the Tribunal.
21. Having made that finding, the grounds do not challenge the Tribunal's decision that the appellant had failed to establish he was at real risk of persecution or serious ill-treatment on return. For completeness, we would add that the Tribunal's decision was wholly in accord with the approach set out by the Upper Tribunal in TG and others especially at [119(iii)] adopting a fact-sensitive approach. Having concluded that the appellant would have family and financial support on return and that, at least, religious education would be available for his child and given that the appellant has never claimed that he or his family had been attacked, it was properly open to the Tribunal to find that the appellant had failed to establish there was a real risk of persecution for a Convention Reason or of serious ill-treatment contrary to Article 3 of the ECHR if he returned to Afghanistan.
Decision
22. For the above reasons, the First-tier Tribunal's decision to dismiss the appellant's appeal did not involve the making of an error of law. That decision stands.
23. Accordingly, the appellant's appeal to the Upper Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date