Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01184/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 January 2017
On 10 February 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

R K
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: The Appellant appeared in person but was not represented
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer
Interpreter: Mr N Neopaney, Nepali and English languages
DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the appellant. Breach of this order can be punished as a contempt of court. I make this order because there is invariably a possible risk of harm to an unsuccessful asylum seeker even if, as the case here, the appellant has failed to establish his case.
2. This is an appeal by a citizen of Nepal against a decision of the respondent on 22 January 2016 to refuse him asylum and remove him from the United Kingdom.
3. The First-tier Tribunal Judge did not accept that the appellant was or ever had been at risk. His findings are summarised at paragraph 22. At paragraph 22(1)(a) the judge said that he did not accept that the appellant had been attacked as he claimed. He could not match the appellant's contention that his father-in-law was powerful enough and influential enough to locate him in the capital city with a population of a million with the absence of any evidence about his father-in-law's business interests or even supporting evidence from the appellant's wife. Neither could the judge understand how, if the appellant's father-in-law was as powerful as alleged, he could not prevent his daughter leaving Nepal on her own passport in her married name. Neither did he understand how this powerful and vengeful and dangerous man had abandoned his demands that the appellant's wife enter into an arranged marriage.
4. At paragraph 22(i)(b) the judge expressed dissatisfaction with the documentary evidence supporting the appellant's claim. He noted that "much of it" was served only shortly before the hearing. This finding is particularly the subject of challenge and I set out much of the paragraph in its entirety:
"The documentary evidence was provided only after the appellant's claim was refused, much of it only very shortly before this hearing. It is not composed of original documents and therefore difficult to verify. I note the following inconsistencies in its contents: a newspaper article has no date, time or location (beyond saying 'the road') for the alleged attack, a curious omission from a news report; the hospital letter is in English, where all the other documentation is in Nepali. It gives only scant detail of the 'head and leg injuries' suffered by the appellant, rather than, for example, stating 'fracture of the left femur and concussion' as might be expected from a medical source. It also echoes the 'head and leg' phrase used in the newspaper report, indicating perhaps the same origin. The letter from the human rights organisation is devoid of detail: it provides no date for the incident, does not say specifically who they spoke to, or what records they consulted and provides copies of no statements or documents. On balance, therefore, I consider that these documents are fabrications and give them no weight."
5. Under paragraph 22(i)(c) the judge did not believe that the appellant would have returned to Nepal in 2011 if he really was at risk as he claimed to have been and especially if he had been attacked in 2005. At paragraph 22(i)(d) he found that the credibility overall was damaged by the delay in claiming asylum claim until other possibilities that remained had been exhausted.
6. These findings were challenged. Of particular relevance was the first assertion in the grounds that the judge was wrong to state as, according to the appellant he did at paragraph 22(b), that the appellant had not relied on original documents. The appellant said that the only document that was a photocopy was the newspaper article and that was a photocopy because it dated from 2011 and originals were not available and a copy had been prepared for him.
7. When he gave permission to appeal First-tier Tribunal Judge Gillespie acknowledged that there were "many tenable reasons" for the adverse credibility findings but he was concerned the judge had arguably improperly and irredeemably relied as a reason for disbelieving the appellant on his production of copy documents where the only clear copy was a newspaper article.
8. As is apparent from the paragraph set out above the judge's only concern about the documents being photocopied was that it made them harder to read. He was critical more of the contents of the document. He was right to be unimpressed by a newspaper report that did not identify the occasion or location of the incident reported. He was similarly entitled to be unimpressed by a medical report that did not use medical jargon. The human rights organisation report is devoid of detail. The judge has explained what concerned him. The evidence lacked specificity.
9. However, the judge did say "I consider that these documents are fabrications and give them no weight." This was an aggressive and unnecessary finding. I have to decide if these criticisms are material.
10. If the judge had contented himself with saying that the documents were unimpressive and that he intended to give them little weight, as might have been suggested by the decision of this Tribunal in Tanveer Ahmed v SSHD [2002] UKIAT 00439* his decision would be very hard to criticise justly.
11. The appellant addressed me courteously and with reticence. I hope he said all that he wanted to say. I certainly gave him every opportunity to do that.
12. He was offended that the documents were found to be dishonest and he asked me to see a copy that purported to be the original of the hospital document. It did not assist me. That document was not criticised because it was in the form of a copy rather than the original document but because of its contents and the criticism of the contents remain.
13. When I step back and look at the reasons I find that the judge has given appropriate weight to the lateness of the application for asylum. This was not the first reason he gave but it is a feature of the case and which he is entitled possibly even obliged to give some significance.
14. He also looked at the inherent implausibility of the case making perfectly fair observations about the incongruity of the appellant returning to a country where he thought he would be at risk and of the apparent power of his father-in-law not being supported by other evidence.
15. This is not a case of the appellant producing highly pertinent documents which, if genuine, would prove his case. Rather he has produced documents of peripheral value which the judge has found unsatisfactory for proper reasons.
16. I remind myself that the appellant has claimed that his life is at risk. He is entitled to a proper decision. Having reminded myself of my responsibilities towards the appellant I have come to the conclusion that when every due allowance is made the error here cannot be described as material. If the judge had given them some weight on the basis that they were unreliable rather than no weight on the basis that they were false he would have come to the conclusion that he did, namely the appellant has not proved his case.
17. It follows therefore that although I understand completely why the First-tier Tribunal gave permission to appeal this decision I have decided to dismiss the appellant's appeal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 9 February 2017