Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01130/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15th December 2016
On 13th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

aa
(ANONYMITY DIRECTION maintained)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Radford of Counsel instructed by Elder Rahimi Solicitors
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant appeals against the decision of First-tier Tribunal Judge Callow dismissing the Appellant's appeal against the Respondent's decision to refuse to grant him asylum, humanitarian protection or leave on the basis of his human rights.
2. The Appellant appealed against that decision and was granted permission to appeal by Deputy Upper Tribunal Judge Taylor. The grounds upon which permission was granted may be summarised as follows:
(1) The judge erred in criticising the Appellant's account for being sparse in detail;
(2) The judge erred in his criticism of the implausibility of the Appellant's account of his parents' execution;
(3) The judge failed to consider the subjective evidence regarding cultural norms in Iran;
(4) The judge erred in requiring corroborative evidence.
3. I was provided with a Rule 24 response from the Respondent which all parties read and took into account before proceedings began.
Error of Law
4. At the close of submissions I indicated that I found an error in law such that the decision should be set aside but that my reasons would follow which I shall now give.
5. In relation to the first ground Ms Radford for the Appellant took me to several passages in the Asylum Interview Record (AIR) which revealed an expanse of information which did not appear to be acknowledged in the decision of the First-tier Tribunal. Whilst this of itself is of course not an error, the criticism of the account as being described as "bald and general allegations without much detail" is in my judgment flawed. Ms Radford set out that in the AIR the Appellant recounted the details of his account over the course of 144 questions of evidence. That account started in detail at AIR17 onwards wherein the Appellant described that he worked as an apprentice in a barber shop and was witnessed spitting on a picture of the Ayatollah Khomeini which the Appellant says he was attempting to clean but was witnessed by the Etelaat agent and ran away. The interview goes into detail regarding the account but it cannot be criticised for lack of detail because in such interviews the Appellant will traditionally answer the question as put to him and no criticism was raised in the refusal letter that the Appellant was vague or evasive in his answers. Further still I bear in mind the guidance of the Vice President in the decision of Kalidas (agreed facts - best practice) Tanzania [2012] UKUT 327 (IAC) which states as follows in the third judicial head note in relation to witness statements in asylum appeals:
"Any further statement should not be a rehash what has already been said. It should be directed to the remaining live issues."
6. In that light and without direct reference to any passage of the interview or the AIR or the witness statement as being lacking in detail and thus not requiring further expansion, the general assertion that the Appellant's account is bald and without much detail is unreasoned and inconsistent with the evidence I was taken to. Ms Radford also highlighted that her solicitors had submitted a skeleton argument to the First-tier Tribunal which sets out the Appellant's reliance on the AIR and witness statement and points out that the witness statement does not rehearse the account but adopts the Asylum Interview Record in full. Thus I do find that the Appellant succeeds in his first ground in highlighting an error of law in the First-tier Tribunal's decision.
7. In relation to Ground 2 and the implausibility of the Appellant's parents' execution, the First-tier Tribunal's decision states as follows in this regard:
"As to the dramatic consequences of the Appellant's parents, which the Appellant claimed, despite hiding in a barn, he witnessed in the city centre, carries no weight. It is implausible."
8. In respect of that finding the Appellant submits that whilst it was true that he was hiding in a barn the First-tier Tribunal has failed to consider that he gave evidence in his AIR at questions 60 to 62 and 79 to 81 that his parents were executed at Piranshahr in the city centre; and whilst he was hiding in a barn where there was livestock which was in the countryside and was two and a half hours away by car from the city centre, the Appellant stated clearly at question 81 that the shopkeeper helped him to get there (meaning his former employer who assisted him whilst he was in hiding). In this regard I note the guidance given by the Court of Appeal in the decision of HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 when Neuberger LJ (as he then was) stated as follows at paragraph 29:
"Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar."
9. I also bear in mind the decision of the Court of Appeal in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223 wherein Keene LJ stated as follows:
"There seems to me to be very little dispute between the parties as to the legal principles applicable to the approach which an Adjudicator, now known as an Immigration Judge should adopt towards issues of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an Appellant's account of events... in the context of conditions in the country from which the Appellant comes. The dangers were well described in an article by Sir Thomas Bingham, as he then was, ... in Kasola v SSHD 13190, the passage being taken from an article in current legal problems. Sir Thomas Bingham said this:
'An English judge may have, or think that he has, a shrewd idea of how a Lloyds broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I should think, feel very much more uncertain about the reactions of any Nigerian merchant, or an Indian ship's engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even - which may be quite different - in accordance with his concept of what a reasonable man would have done'."
10. In that light I find that the judge has given an unreasoned finding in respect of the implausibility of the Appellant witnessing his parents' execution given that he stated in his interview that his employer took him to the city centre where it occurred, which the judge has not grappled with in his criticism of the Appellant's account.
11. In respect of issue 3 and the cultural conditions in Iran the Appellant complains that the First-tier Tribunal Judge failed to have regard to questions 49 and 51 of the AIR, which demonstrate that the Appellant was an obedient son of his parents which he also referenced at paragraph 11 of his witness statement being from an Orthodox Kurdish culture whereby if his father told him to do something he would do it unquestionably. It is true that questions and answers 49 to 51 reveal the Appellant showing that he acted upon his father's instructions and when asked why he answered "if he tells you something, you don't ask what its about". Thus in that respect the judge's finding in his decision at again paragraph 17 that the Appellant would know of his father's involvement with the PJAK does not grapple with this evidence of obedience. Furthermore, the Appellant complains that the criticism that the Appellant could reasonably have been expected to produce a statement from his employer at paragraph 17 does not sit well with the evidence reflected at paragraph 14 that the Appellant was in contact with his former employer via Facebook and he had already asked him for a statement for his appeal but awaiting its arrival at the date of that hearing.
12. In light of the above flaws in the First-tier Tribunal Judge's succinct conclusions at paragraph 17, which in truth form the majority of the findings of fact that go to the core of the Appellant's claim, I find that the first three grounds are sufficient to reveal material errors of law such that the decision should be set aside.
13. Before concluding I should mention that Ms Radford also criticised the findings regarding the requirement or request for a lack of corroboration and also the notation of the Appellant's date of birth which the Appellant states is 29th July 1999 or in Iranian calendar format as 07/05/1378 (as reflected at AIR question 27). It was alleged that the First-tier Tribunal Judge failed to note that at paragraph 13 of the refusal the caseworker had apparently mistyped the correct date of birth as 29/07/999 transformed purportedly into 27/09/1999. Ms Radford further highlighted that the date in the screening interview at question 1.3 was pre-typed and there was no indication of its source nor that it was verified by or put to the Appellant. Furthermore Ms Radford criticised the First-tier Tribunal's statement at paragraph 16 that the Appellant gave a different name or age or date of birth at when he was stopped in Dunkirk. Ms Radford accepts that the Appellant was fingerprinted which is mentioned at AIR question 140 and in the Appellant's witness statement but that no further evidence exists in the papers that reveals more regarding what took place in Dunkirk. Given my findings in relation to Grounds 1, 2 and 3 as stated above I do not propose to address these remaining points but I have set them out merely to document the Appellant's complaint against other issues raised in the First-tier Tribunal judge's decision lest it be said that they were not raised sooner.
14. In conclusion, I set aside the decision and findings of the First-tier Tribunal in their entirety.
Notice of Decision
15. The appeal to the Upper Tribunal is allowed. The making of the previous decision involved an error on a point of law and is set aside. The appeal is remitted to the First-tier Tribunal to be heard by a differently constituted bench.
16. The Upper Tribunal draws to the attention of the First-tier Tribunal that the Respondent's bundle contains a copy of the Asylum Interview Record; however, only alternate pages of the AIR were photocopied. In any event, the Appellant's representatives had provided a complete copy of the AIR which can be seen at pages 11 to 53 of the Appellant's bundle in the First-tier Tribunal which remains on file.

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 (as already granted by the First-tier Tribunal). No report of these proceedings shall directly or indirectly identify him or any member of their 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 Dated

Deputy Upper Tribunal Judge Saini