Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01115/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Determination Promulgated
On 9 February 2017
On 27 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MURRAY

Between

[h m]
(Anonymity has not been directed)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Winter, Counsel for Latta & Co, Solicitors, Glasgow
For the Respondent: Mr Matthews, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Iran of Kurdish ethnicity, born on [ ] 1995. He appealed against the decision of the respondent dated 3 February 2016 refusing his asylum appeal, his claim on humanitarian protection grounds and his human rights appeal. His appeal was heard by Judge of the First-Tier Tribunal Sweeney on 31 October 2016 and dismissed on all grounds in a decision promulgated on 16 November 2016.

2. An application for permission to appeal was made and permission to appeal was granted by Judge of the First-Tier Tribunal Keane on 10 January 2017. The permission refers to the grounds which state that the Judge did not refer to the background evidence on which the appellant relied, in particular when assessing the appellant's credibility and failed to take into account the extent to which the background evidence provides support for the appellant's account of events. The grounds also state that the Judge was influenced to too great an extent by the inconsistencies in the evidence and found unreasonably that much of the evidence was implausible.

3. There is a Rule 24 response on file which states that at paragraph 22 of the decision the Judge states that he has given very careful consideration to all the evidence before him including evidence not specifically mentioned. The response states that it is clear that the Judge finds the appellant to lack credibility. At the core of the claim is an alleged raid and at paragraph 29 of the decision the appellant's account of the raid is found by the Judge to be confusing and inconsistent. Proper reasons are given for this finding. The response states that it is true that the adverse credibility findings are largely based on inconsistencies in the appellant's evidence but the Judge was entitled to come to the conclusion he did.

The Hearing

4. Counsel submitted that this permission has been granted on erroneous and obvious points so the grounds are otiose. He submitted that the Judge did not take into account the Country Information. The skeleton argument before the judge referred to the COI report and he submitted that it is not clear how the Judge assessed credibility without considering the Country Information.

5. Counsel submitted that at paragraphs 28 to 44 of the decision the Judge refers to inconsistencies but these inconsistencies are explained in the written submissions of the appellant's representative. At paragraphs 16 and 17 of these submissions reference is made to the COI report and the Danish Refugee Council Report on Iranian Kurds. All these documents are in the appellant's second bundle and the relevant passages are highlighted. He submitted that although everything was shown specifically to the Judge the Judge did not consider it adequately. In the COI report reference is made to people who are perceived to be involved in Kurdish political activities. He submitted that that is this appellant's position on return. He was a sympathiser of the KDPI and on return will be seen as such.

6. I was referred to paragraphs 60 to 62 of the decision which refer to the appellant participating in a demonstration in the United Kingdom. The Judge states that the appellant has only demonstrated in one KDPI demonstration and there is no evidence that the appellant has been identified by the Iranian authorities relating to this. The Judge also finds that the appellant did not attract any adverse attention from the Iranian authorities while he was in Iran. Counsel submitted that the background evidence makes it clear that the authorities in Iran have no tolerance for anyone who supports the KDPI, so on return there is a high risk of this appellant being prosecuted. The COI report at 3.1.2 makes it clear that Kurdish Iranians who return to Iran are at risk. There is a general threat. Sympathisers are imprisoned.

7. I pointed out that the Judge did not believe the core of this appellant's account. Counsel referred me to paragraph 26 of the submissions and the objective evidence available on recruitment of KDPI members and supporters. He submitted that this supports the appellant's position and the country information supports the appellant's account. At paragraph 29 of the written submissions it is stated that in smaller communities members and sympathisers of the KDPI connect. He submitted that this must bolster the appellant's credibility. At paragraph 39 of the submissions it is made clear that the objective evidence supports the appellant's position and his friend Mustapha, with whom he was working, is likely to have given his name under torture while detained by the Etttela'at. He submitted that if KDPI supporters are arrested in Iran they are put under huge pressure to identify other activists.

8. I was referred to paragraphs 28 to 44 of the decision which focuses on inconsistencies and Counsel submitted that there is nothing in the decision to show that the Judge took into account the country information, which supports the appellant's account, when he assessed credibility and that must be an error. Similarly the Judge finds that it is unlikely that Mustapha would have revealed the appellant's name but that is contradicted in the background evidence. He submitted that this is important as if indeed Mustapha did give up the appellant's name it is likely that the appellant will be in danger on return.

9. Again with regard to the demonstration the appellant attended in the United Kingdom, the COI report states that if Kurds returning are suspected of peaceful dissent they will be at risk on return. I was referred to the bundle of Country Guidance cases provided. The case of SSH & HR (Iran) [2016] UKUT00308 was referred to. Counsel submitted that it is clear that on return this appellant will be questioned because he left illegally. He submitted that because of the appellant's background and his activities it is likely that the authorities will find that he is someone who supports the KDPI which will put him at real risk. Perception is sufficient and that is an important point and the Judge has not properly considered risk on return for this appellant. Counsel submitted that the Judge failed to assess whether his sur place activities will put him at risk on return. He submitted that this appellant will be in danger at the airport and I was asked to find that there is a material error of law in the Judge's decision as credibility was not assessed based on the country information.

10. The Presenting Officer submitted that this appeal was dealt with by a specialist Judge in Immigration and Asylum and he would have been aware of the background evidence. She submitted that it is clear from the decision that he has taken into account the written submissions in full. He refers to this at paragraph 18 of the decision. At paragraph 26 the Judge states that he is assessing the appellant's credibility based on the documentary evidence before him.

11. The Presenting Officer submitted that the inconsistencies referred to by the Judge go to the core aspects of the claim. He submitted that the Judge was entitled to doubt the truth of the account and has given proper reasons for this. The objective material had no real bearing on these inconsistencies. He submitted that the primary reason for the Judge rejecting the appeal was the inconsistencies and I was referred to paragraph 47 of the decision. The Judge does not accept the appellant's account and finds that he will not be at risk on return to Iran.

12. With regard to the Judge's findings about Mustapha, he submitted that the Judge considered the relevant issues here. He found the appellant to lack credibility when he stated that someone in the Ettela'at told him that Mustafa had given the Etttala'at the appellant's name. The Judge found it was unlikely that this would happen and the objective evidence does not support this part of the appellant's evidence. The Judge does not believe this happened. At paragraphs 57 to 62 the Judge deals with risk on return and the relevant case law and points out that there is no evidence that the appellant has been identified by the Iranian authorities engaging in a demonstration. The Judge also finds that the appellant did not attract any adverse attention from the Iranian authorities while he was in Iran.

13. The Presenting Officer submitted that the Judge has dealt properly with the evidence before him and has found that the appellant is not a witness of truth. The Judge found that his sur place activities were based on self interest only. He submitted that the permission has no substance and that there is no material error of law in the Judge's decision.

14. Counsel submitted that the error is the lack of proper consideration by the Judge of risk to the appellant at the airport on return. He submitted that the Judge did not assess the country information and the country information indicates that even peaceful support of the KDPI puts Kurdish Iranians who have left Iraq illegally, in danger. He submitted that the appellant does not require to be a leader or a mobiliser, he will be in danger purely because he supported the KDPI and on return at the airport he will be questioned as a Kurd who left illegally and if he tells the truth he will be at risk. He submitted that that is sufficient for the appellant's appeal to be allowed. He submitted that the Judge accepts that the appellant attended a demonstration in the United Kingdom and that is sufficient to put him in danger on return.

Decision and Reasons

15. The permission states that the Judge did not consider the second bundle of evidence provided by the appellant, which comprised the background evidence about conditions prevailing in Iran and in particular the Kurdish community in Iran. He did not refer to the background evidence when assessing the appellant's credibility. Counsel has submitted that the background evidence supports the appellant's account of events but when I consider the decision I find that the Judge was right to find that this appellant was of no interest to the authorities, as a supporter of the KDPI, when he was in Iran.

16. The Judge's decision goes on to consider the appellant's credibility and accepts that he illegally exited from Iran and participated in one demonstration in the UK. At paragraph 22 he states that he has considered all the evidence before him and he states that even if there are some untruths in the evidence, this does not mean that the core of the story does not stand.

17. At paragraph 27 the Judge does not accept the appellant's account as being truthful. The core of the appellant's account is the raid and the Judge finds that his evidence about this is confusing and inconsistent. The Judge has clearly taken into account the written submissions by the appellant's representative when he made his decision and the Judge points out that the appellant made some alterations to his original interview, but he did not correct the interview relating to his mother sending his cousin to tell him of the visit by the Ettela'at, although he now states that this has been recorded incorrectly. The Judge clearly sets out the inconsistencies in the appellant's evidence and these inconsistencies are many and important when the raid is considered. At paragraph 44 the Judge specifies these inconsistencies and at paragraph 46 he states that he believes the appellant has not undertaken KDPI activities and the authorities are not searching for him. At paragraph 49 the Judge makes it clear that it is unlikely that someone who works for the Ettelaa't would reveal to a contact of the appellant that Mustapha had been detained and tortured and had given the appellant's name. This particular part of the evidence is not supported by the objective evidence. The Judge explains why he does not believe this at paragraph 50 and 51. Because of this he does not accept the appellant's account that Mustapha provided the appellant's identity to the authorities leading to them searching for the appellant. The Judge finds that the appellant has been bolstering his claim and that the core of his claim is a lie.

18. The Judge then goes on to consider the appellant's sur place activities. He accepts that the appellant participated in a demonstration but finds that this was a self-serving act. He does not find that this will put him at risk from the Iranian authorities on return, as there is no evidence that the authorities are aware of the appellant attending this demonstration. There are no names on the photographs and the Judge does not believe that the appellant was of any interest to the authorities when he was in Iran.

19. There is nothing in the decision to make me believe that the Judge has not considered the background evidence. He has, as stated by him considered all the evidence before him. He finds the core of the account to lack credibility and although he accepts that as a Kurd, having left Iran illegally, the appellant will be questioned at the airport, he finds that he will not be at risk of persecution. This is because he finds the appellant has been untruthful in his account.

20. I have considered the objective evidence on file and do not find that had this been referred to in detail in the decision it would have affected the Judge's findings on the appellant's credibility.

Decision

21. I find that there is no material error of law in the Judge's decision promulgated on 16 November 2016 and that this decision must stand.

Signed Date

Deputy Upper Tribunal Judge Murray