Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01255/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 December 2016
On 19 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

MS
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Sanders, Counsel
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge L M Shand QC) dismissing his appeal against the respondent's decision made on 7 January 2016 refusing him asylum.
Background
2. The appellant is a citizen of Afghanistan born on 15 May 1996. He arrived in the UK at the end of July 2015. On his own account his date of arrival was 31 July 2015, but it was on 28 July 2015 that his father telephoned the Home Office to arrange for him to claim asylum. In any event, he claimed asylum on 12 August 2015 when his screening interview took place and his full asylum interview was on 21 December 2015.
3. The reasons for the respondent's decision are set out in the decision letter dated 7 January 2016. The respondent accepted that the appellant was an Afghan national but the rest of his claim that he had been forced to become a suicide bomber but had escaped but still came under the suspicion of the authorities was rejected in its entirety. In the alternative, if the appellant had had problems with the Taliban, it was considered that taking his claim at its highest he would be able to relocate away from his home area.
The Hearing Before the First-tier Tribunal
4. At the hearing before the First-tier Tribunal the appellant and his father gave oral evidence. The appellant said that he was a Sunni Muslim whose family came from Baro Village in Nangarhar Province. They had lived in Kabul originally, but when he was about 5 the family had moved to Pakistan. Towards the end of 2014 they returned to Baro Village in Afghanistan as their house in Kabul had been attacked when the appellant's father fled Afghanistan. The appellant said that he had attended a madrassa with his brother in the village of Baticot staying there for ten days at a time and returning home for three days. A mullah whose name the appellant did not know used to come to the madrassa once a week and lecture on historical events of early Muslims. After about three months the appellant told him that what was being taught in the madrassa was basic and things he knew already.
5. The mullah said that he could arrange for them to go to another madrassa where they would receive higher education. The following day the appellant, his brother and three others were taken in a car to a place about 30 minutes drive away. They then transferred into a pick-up truck and were driven through rough terrain at night to a compound where all the men there were armed. The appellant wanted to see where they were but at the gate he was told that he could not go out, and when asked why not he was hit with the butt of the gun and thrown back inside.
6. They spent ten days at this place and were told that if they assisted the Taliban in the fight against the infidels and died they would be promised paradise. After ten days they were taken to a different location by night. They were blindfolded during the journey which took several hours by vehicle. When they reached their destination they were taken to an upstairs room. They were told that in the morning they would be taken to the city of Jalalabad, given suicide vests and would have to blow themselves up.
7. During the night the appellant's brother and others fell asleep, but the appellant heard people talking until about 2.00 a.m. When he realised everyone was asleep he woke his brother and the two of them jumped out of the window. They were not prisoners and so were not being guarded. They jumped out into the street and ran until dawn and then hid in the woods until it got dark again. They walked to a nearby village. They then walked for three or four hours and arrived home just after midnight. Their mother told them that three bomb blasts had taken place in Jalalabad the previous day and that the Afghan Army had come to the house and told the appellant's mother that the appellant and his brother were involved in the attacks. They had taken away their two younger brothers on the morning following the night during which the appellant and his brother had escaped from the Taliban. They told their mother they had done nothing wrong.
8. She contacted her uncle who came and collected them, taking them to Shumali where they stayed in his house for nine to ten days. They were then taken to Kandahar, handed over to an agent and taken out of Afghanistan. After arriving in the UK the appellant learnt that his younger brothers had been released on bail after village people assured the army that they were not involved in anything and that the appellant and his other brother would be handed over if they came home.
9. When assessing credibility the judge reminded herself of the difficulties an appellant might have in relating distressing experiences of persecution, referring to the Tribunal decision in Chiver [1997] INLR 212 and the guidance in the UNHCR Handbook. She also reminded herself that when the screening interview, age assessment and asylum interview were carried out the appellant was a youth and that she should exercise extreme caution before rejecting as incredible an account by an anxious and inexperienced asylum seeker whose reasons for seeking asylum may well contain inconsistencies and omissions.
10. The judge has set out her review of the evidence at [25]-[45]. She summarised her findings in [45] as follows:
"45. I regard the contradictions which I have identified in the appellant's evidence and the implausible aspects of his evidence referred to above as strong indicators that his account is fabricated. Looking at all the evidence in the round, including the country guidance evidence referred to herein and the further country guidance referred to in Mr Sills' [Counsel for the appellant at the First-tier Tribunal] Skeleton Argument and submissions, I am reinforced in that view. Considering all the evidence in the round the appellant has failed to satisfy me, to the low standard required of him, that his account of events in Afghanistan which he alleges led to him seeking refuge elsewhere is true. In all the circumstances the appellant has failed to establish, to the low standard required, that he has a well founded belief that if he were to return to Afghanistan he would be at risk from the army or the Taliban."
Assessment of whether there is an Error of Law
11. In the grounds it is argued that the judge's decision is legally flawed on account of inadequate reasoning and failing to take material matters into account. The grounds then set out a number of challenges to the judge's findings which I will deal with in turn.
12. It is argued that at [26] the judge said that the appellant had given inconsistent evidence about whether he was recruited by the Taliban against his will and that there is an inconsistency between his statement that the Taliban considered the group to be willing participants and the fact that the group were frightened about acting as suicide bombers. It is argued that there is no consistency and that having fear about doing something is not inconsistent with being willing to do something. Ms Sanders submitted that the appellant and his brother had been taken from a madrassa and the fact that they felt fear would not affect what the Taliban might think about the situation. Ms Brocklesby-Weller submitted that the point the judge was making in [26] was the contrast in the witness statement between the appellant's assertion that according to the Taliban they were willing participants, that he believed the others were willing to martyr themselves but he and his brother were not. Yet in the same witness statement the appellant said that when they were told that night they would have to blow themselves up the group was frightened.
13. I am not satisfied there is any contradiction in [26] undermining the judge's findings. The point the judge was making, which was one of many, was that the appellant had given no explanation why if he knew the group of five were frightened on receiving the news that they were expected to blow themselves up, he believed that the others were willing to be martyrs. That was a point the judge was entitled to make on the evidence before her.
14. The next ground relates to [28] and [29], dealing with the appellant's escape from the house. The grounds argue that the judge was wrong to say that it was not credible that the Taliban would leave the group unguarded. The appellant's account was not that he left through the door but jumped out of a first floor window. Hence the appellant could not know if there were guards outside the door of the room where they slept or elsewhere in the building. Ms Sanders further argued that any knowledge about where the guards were sleeping was something beyond the appellant's knowledge. Ms Brocklesby-Weller submitted that the judge had been entirely alive to the evidence which was summarised in [19]. The judge's comment that no credible explanation was given why the Taliban would take such measures to hide the location of the house when the youths had been taken there blindfolded but then not guard them when they were there was a comment properly open to her.
15. In my view this ground is simply seeking to re-argue issues of fact. It was for the judge to decide what inferences could properly be drawn from the evidence and her comments are ones which could reasonably be made about the appellant's account.
16. The grounds then refer to [30] and argue that the judge misrepresented the evidence, which was not that the group of suicide bombers talked until 2.00 a.m. and then all bar the appellant fell asleep, but as set out at [19] the group had fallen asleep and the appellant heard other people talking until 2.00 a.m. and at that point realised that everyone was asleep. Ms Sanders submitted that this inconsistency indicated that the judge was making an assessment on a misunderstanding of the evidence whereas Ms Brocklesby-Weller submitted that the substance of what the judge was saying at [30] was that it was not credible in such circumstances of having learned earlier that they were to be suicide bombers that the appellant's brother would simply fall asleep with the others having learned he was to die the following day or that there was no crying or external expression of fear by his brother or anyone else. I am satisfied that even if the judge did misunderstand the appellant's evidence about whether others outside the room or those within the room were talking until 2.00 a.m., that has no bearing on the substance of the judge's comment about the apparent lack of reaction to being told only a short time previously that they were to be suicide bombers.
17. The grounds argue that at [32] there was no credible explanation why the army would wish to look for the appellant and his brother after the attack, whereas the most obvious explanation is that the army had intelligence about their involvement in the attack, and that, given that involvement, it was unsurprising the authorities would be interested in them. Ms Sanders submitted that the judge's reasoning on this issue was not particularly clear and that the attack could have involved the others who had been taken. She submitted that the judge had been wrong to focus on something that would not have been within the appellant's knowledge. Ms Brocklesby-Weller submitted, and I agree, that the fact that the appellant may not know why the authorities had come to look for him and his brother did not mean that it was not open to the judge to make findings on that evidence.
18. In [32] the judge analysed the evidence about the escape of the appellant and his brother. She said that no credible explanation was offered for how the army would have known where to look for them or why they would have any interest in them given that they had committed no crime or terrorist act. It was the appellant's case that the army came in the morning following the night when he and his brother escaped after the suicide attacks had taken place in Jalalabad. The judge was entitled to comment that it was inherently incredible that if he had no prior affiliation with the Taliban before being taken away that the army would have come to his mother's house immediately after suicide attacks took place in Jalalabad. At interview the appellant said that he could give no explanation for this and had speculated that probably someone had given false information or the army was suspicious, but as the judge commented that that begged the question of why the army would be suspicious.
19. The grounds argue that at [33] the judge said that it was not plausible that the appellant would not know what had happened to other members of the group, but she failed to appreciate the difficulties the appellant would face in obtaining this information and that establishing whether the individuals involved acted as suicide bombers or remained with the Taliban would clearly be very difficult for him. Ms Sanders submitted that the fact that the appellant did not know what had happened to them was not at all implausible as there may be all sorts of reasons why. The judge considered this issue at length in [33], making the point that if there was any chance that the three youths were taken with the Taliban along with the appellant and his brother were not the people used in the suicide bombings in Jalalabad, it would have been of the upmost importance to find out what had happened to them so that they could vouch for the innocence of the appellant and his brother, particularly as they had attended the same madrassa, and it would seem on the face of it that it would have been possible to make enquiries of their whereabouts. This ground again simply seeks to reopen issues of fact where the judge has made comments properly open to her.
20. The ground dealing with (34) concerns a comment made by the judge g that Sharia law is applied in Afghanistan without giving any authority for this statement. Ms Sanders submitted that it was unclear what point the judge was seeking to make about this, whereas Ms Brocklesby-Weller said that the comment had to be looked at in the context of the paragraph as a whole. The judge was dealing with a document relied on by the appellant, purportedly from a court issued in Nangahar Province stating that the arrest of the two younger brothers was not in accordance with Sharia law. The judge was considering whether the document was reliable and commented that on the appellant's account the reason why his two younger brothers were released was not because the court held their detention to be unlawful, but because villagers had vouched they were not involved in the shootings. The judge considered the implications of the appellant's evidence that his brothers had been taken in for questioning, not only in [34] but also in [35]-[36] and gave further sustainable reasons in [37] why she did not find the court document to be reliable.
21. It is then argued that at [39] the judge said the appellant had been inconsistent about whether the Taliban had been to his house and that nowhere does the judge record the appellant as stating that the Taliban had not been to his house and therefore failed to identify the inconsistency in the evidence. Ms Brocklesby-Weller submitted that the paragraph had to be considered in the light of the complexity of the appellant's narrative which had included evidence that the appellant's mother had moved to Shumali and was in hiding there from both the Taliban and the police [36]. In [39] the judge considered the appellant's evidence about the Taliban coming to his house in the light of his evidence in cross-examination that this had happened. The judge then considered whether the house referred to was the house in Baro where he had never said that the Taliban had come looking for him or to the house in Shumali, but the appellant had said that his mother had had no problems with the army or Taliban there. I am not satisfied that this ground raises any arguable challenge based on law to the judge's analysis of the evidence.
22. The grounds argue that at [41] the judge said that there was no plausible explanation why the Taliban would be interested in the appellant and that she misconstrued the country evidence on this point and in particular the UNHCR Guidelines cited which state that persons who resist recruitment and their family members are reportedly at risk of being killed or punished and that this risk is not limited to children or areas under the effective control of the Taliban. I am not satisfied there is any substance in this ground. The judge considered the extracts from the UNHCR Guidelines produced at the hearing. She noted that it was emphasised that whether there was a risk of forced recruitment in any given case would depend on the particular circumstances of the case. She also took into account the information in the COI Report "Afghanistan: Taliban Strategies - Recruitment July 2012" which noted that the recruitment of children was generally by methods of training and indoctrination of young adults between 12 and 17 as in general children were not recruited by force. I am not satisfied that the judge either misconstrued or disregarded the background evidence.
23. Finally, the grounds argue that in relation to sufficiency of protection and internal relocation the judge's assessment was predicated on adverse credibility findings and that she failed to have regard to evidence submitted to show the state could not provide protection against the Taliban and erred when considering internal relocation by confining consideration to the reasonableness of relocation.
24. These grounds presuppose that the appellant would be at real risk on return to Afghanistan but the judge for reasons properly open to her found that this was not the case. In any event, I am not satisfied that there is any substance in the challenge to the judge's findings in the alternative. She was entitled to comment that it was the appellant's evidence that his mother and siblings lived in Shumali which was a journey of seven to eight hours by car from Baro and that in his evidence he had said that his mother had not suffered any difficulties there from the army or the Taliban.
25. The judge was entitled to find for the reasons she has set out in [47] that the appellant would be able to relocate without it being unreasonable or unduly harsh for him to do so. Finally, she considered the issue of whether there was a risk of harm from generalised violence under article 15(c), but for the reasons which she gave in [48] she was not satisfied this was the case.
26. In summary, the grounds do not satisfy me that the judge erred in law in her assessment of the evidence. In substance, they are an attempt to reopen and reargue issues of fact. I am not satisfied that the criticisms of her analysis of the evidence have been made out for the reasons I have given. When the decision is read as a whole, I am satisfied that the judge analysed the evidence carefully and reached findings and conclusions properly open to her.

Decision
27. The First-tier Tribunal did not err in law and the decision stands. The anonymity order made by the First-tier Tribunal remains in force.

Signed H J E Latter Date: 16 January 2017

Deputy Upper Tribunal Judge Latter