Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01058/2019

THE IMMIGRATION ACTS

Heard at Manchester Civil Justice Centre On 9 July 2019
Decision & Reasons Promulgated On 16 July 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between

HAMID SALIH NASIR AL ANEZI
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Naz of Kingswright Solicitors
For the Respondent: Ms E Groves Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Mark Davies promulgated on 3 April 2019, which dismissed the Appellant's appeal against a refusal of a protection claim on all grounds in essence because the Judge did not accept that the Appellant was an undocumented Kuwaiti Bidoon.
3. Grounds of appeal were lodged arguing that his assessment of credibility was flawed; his assessment of the witness Obeid Ali was flawed; his assessment of risk on return was flawed.
4. On14 May 2019 First tier Tribunal Judge Keane gave permission to appeal.
5. At the hearing I heard submissions from Ms Naz on behalf of the Appellant that (a) She relied on the grounds of appeal.
6. The reasons given by the Judge for his findings were inadequate.
7. In assessing the credibility of the Appellants claim that he brought up a family and was able to procure a false passport to flee from Kuwait the Judge failed to take into account the background material that Bidoons work illegally.
8. The Judge failed to assess his claim to have participated in demonstrations.
9. On behalf of the Respondent, Ms Groves submitted that:
10. The findings were more than adequate.
11. At paragraph 44 the Judge set out his overall conclusion and then gave reasons for that decision.
12. Given the failure of the Appellant to answer a number of the questions put to him the Judge was entitled to conclude he was not a credible witness.
13. This was a mere disagreement with findings reasonably open to the Judge.

The Law
14. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
15. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence that was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible.
16. As to the duty to give reasons I take into account what was said by the Court of Appeal in MD (Turkey) [2017] EWCA Civ 1958 at paragraph 26:
"The duty to give reasons requires that reasons must be proper, intelligible and adequate: see the classic authority of this court in Re Poyser and Mills' Arbitration [1964] 2 QB 467. The only dispute in the present case relates to the last of those elements, that is the adequacy of the reasons given by the FtT for its decision allowing the appellant's appeal. It is important to appreciate that adequacy in this context is precisely that, no more and no less. It is not a counsel of perfection. Still less should it provide an opportunity to undertake a qualitative assessment of the reasons to see if they are wanting, perhaps even surprising, on their merits. The purpose of the duty to give reasons is, in part, to enable the losing party to know why she has lost. It is also to enable an appellate court or tribunal to see what the reasons for the decision are so that they can be examined in case some error of approach has been committed."
17. I also remind myself of what was said by the Court of Appeal at para 18 of Herrera v SSHD [2018] EWCA Civ 412, that it is necessary to guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors, particularly if the judge who decided the appeal had the advantage of hearing oral evidence.
Finding on Material Error
18. Having heard those submissions I reached the conclusion that the Tribunal made no material errors of law.
19. The grounds assert that the Judges assessment of the Appellants credibility was flawed as he failed to give reasons for his finding at paragraph 44 that the Appellant was an untruthful witness. The decision must clearly be read as a whole: what the Judges states at paragraph 44 is his overarching conclusion in relation to the Appellants credibility and in the paragraphs that follow he sets out why he did not find the Appellant to be credible. It was open to the Judge to find that the Appellants failure to claim asylum in safe countries en route to the UK undermined his credibility and indeed he had earlier noted (paragraph 22) that in fact the Appellant had refused to answer questions about this initially which the Judge found undermined his credibility. The Judge had heard that the Appellant had previously claimed in Belgium to be a Syrian and given that the Appellants claim to be a stateless Bidoon was at the heart of his case lying when in a safe country about his nationality was a matter that the Judge was entitled to find undermined his credibility. The Judge also found the Appellant to be a poor witness in his own cause noting that he failed to answer straightforward questions when put to him (paragraph 49) and he notes that Ms Naz who represented the Appellant before him acknowledged his failure to answer simple questions that she put in re-examination.
20. The Judges approach to the supporting witness who gave oral evidence is criticised in the grounds suggesting 'there is not any analysis'. This is wrong as the Judge addresses and gives reasons at paragraph 51 as to why he did not find the evidence of the supporting witnesses was credible noting inconsistencies in the evidence of Mr Ali and the Appellant as to when they last met and he found his evidence vague and unspecific as to how they met in the UK.
21. The Judge was entitled to reject the evidence of the Kuwaiti Bidoon Association. He was entitled to note that no one attended court (paragraph 53) to have the evidence challenged and that there was no record of the conversation they had with the Appellant or what they discussed that enabled them to conclude that he was an undocumented Bidoon (paragraph 55)
22. I therefore satisfied that the Judge's determination when read as a whole set out findings that were sustainable and sufficiently detailed and based on cogent reasoning.
CONCLUSION
23. I therefore found that no errors of law have been established and that the Judge's determination should stand.
DECISION
24. The appeal is dismissed.

Signed Date 11.7.2019
Deputy Upper Tribunal Judge Birrell