Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01446/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 April 2017
On 25th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

as
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr P Nathan, Counsel instructed by Ahmed Rahman Carr Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS

Background
1. The appellant, Mr AS, who was born on 24 December 1967 and is a citizen of Turkey, entered the UK on 18 August 2015. He appealed to the First-tier Tribunal against a decision of the respondent dated 29 January 2016 to refuse to him asylum. In a decision promulgated on 11 January 2017, following a hearing on 19 October 2016, Judge of the First-tier Tribunal Beach dismissed the appellant’s appeal on all grounds.
2. The appellant appeals to the Upper Tribunal with permission on the following grounds:
(1) Failure to take into account material evidence;
(2) Requirement for corroboration – failure to give adequate reasons.
Discussion
3. Mr Nathan, on behalf of the appellant, submitted that there was no record of any supplementary questions under cross-examination noted. It was remarkably short. It was also his observation that the summary by the judge of the medical evidence was incomplete and that Judge Beach neglected to take into account that there had been a diagnosis of PTSD.
4. The judge’s findings were from paragraph [40] onwards. Mr Nathan submitted that the discrepancy with the witness statement was not put to the witness in cross-examination and that equally the issues raised in relation to how many times the police had visited his house was not put to the appellant in cross-examination. However, Mr Nathan conceded that the critical paragraph was [48] of the Decision and Reasons where the judge recorded that the appellant informed the doctor who completed the expert report that in the 2015 detention he was hit and beaten and subjected to falaka and sexual abuse. The judge went on to state:
“He has not mentioned the sexual abuse in his witness statement or interview”.
5. It was common ground before me that the judge erred in stating that the appellant had not mentioned this in his witness statement whereas it was in paragraph 21 of the appellant’s first witness statement dated 7 May 2016 which also made reference to the appellant finding this issue very difficult to speak about.
6. Mr Nathan referred to [50] of the Decision and Reasons where the judge indicated that the appellant did not make reference to being released on bail in his witness statement whereas it was in his interview and again this was not put to the appellant. It was also Mr Nathan’s submission that the assertion by the judge that the appellant’s accounts of the 1996 and 2005 detentions had been more detailed than the 2015 detention was not borne out by the witness statement and interview and it was his submission that Judge Beach’s consideration was surprisingly brief and flawed.
7. In relation to ground 2, Mr Nathan submitted that the issue of requirement for corroboration where the judge had said at paragraph [52] that “the appellant had not provided any documentary evidence confirming that he had to report or that he was released on bail, nor does he appear to suggest that there have been routine visits by the police to his house after his failure to report”, goes back to the judge’s finding at [47]. Mr Nathan submitted that the judge was drawing serious inferences without putting this to the witness. Mr Nathan conceded that the principal ground relied on by the appellant before the Upper Tribunal was in relation to the judge’s error as to the appellant mentioning the sexual abuse in his witness statement.
8. Mr Avery submitted that the judge could not be criticised. The discrepancies were set out by the respondent in the Reasons for Refusal Letter and it was for the appellant to address any conflicts in evidence in his appeal. The submissions by the Secretary of State were set out by the judge at paragraphs [14] to [17] of the Decision and Reasons.
9. In relation to the judge’s findings at [40] and [41], Mr Avery submitted that there was a discrepancy in the number of days which the appellant stated he was detained in 2015. In addition, at paragraph [43] and [44], the judge was referring to the lack of detail given by the appellant in relation to his claimed 2015 detention and the inconsistencies in his accounts. Mr Avery highlighted that the judge did not find it credible that the appellant would have been able to find an agent and leave Turkey on the same day.
10. In relation to the issue of the appellant mentioning sexual abuse, Mr Avery conceded that there was a misinterpretation of the evidence by the judge but there was no error in the judge’s finding that the appellant did not mention this at interview and it was not a determinative feature in the findings. Mr Avery submitted that there were plenty of other factors for the judge to find that the appellant’s account of the 2015 detention was not credible; this one confusion in the evidence was not sufficient to undermine the overall conclusions. Mr Avery noted that what Mr Nathan said about the alleged lack of detail in the 2015 accounts, when compared to the previous detentions, was not in the appellant’s grounds of appeal to the Upper Tribunal and in any event amounted to no more than a disagreement with the judge’s findings; the judge was entitled to find for the reasons she gave that there was a lack of detail and confusion over dates. Further, Mr Avery relied on [54] of the Decision and Reasons, which had not been challenged in the grounds, where the judge made alternative findings that even if the appellant were detained in 2015, taking into consideration the country guidance case law he was not at risk on return.
11. In reply, Mr Nathan attempted to take issue with the judge’s interpretation of the country guidance, specifically IK (returnees – records – IFA) Turkey CG [2004] UKAIT 00312 in particular paragraph 6 which the judge set out at paragraph [39] of her Decision and Reasons, that if there is a material entry in the GBTS or in the border control information, or if a returnee is travelling on a one way emergency travel document, then there is a reasonable likelihood that he will be identifiable as a failed asylum seeker and could be sent to the airport police station for further investigation. Mr Nathan submitted that this had to be considered in light of paragraph 5 of the headnote which found that if a person was held for questioning after arrival or elsewhere in Turkey and if a situation justifies that then some additional enquiry could be made of the authorities in the local area about him where more extensive records may be kept. Mr Nathan submitted that it would be at this point that the 2015 detention would come to light. Mr Nathan also relied on paragraph 9 of the headnote of IK in relation to the approach of the Turkish authorities and the risk of torture. Although IK is now twelve years old and Mr Nathan submitted that the situation had deteriorated, even at that stage the use of torture was long and deep seated in the security forces in Turkey and it was submitted there was nothing in the material to suggest an improvement.
12. It was Mr Nathan’s further submission that if there was an error in the judge’s approach, it could not be suggested therefore that it was not material as the judge did not refer to these parts of the guidance in IK in her findings at [54].
Conclusions
13. I am not satisfied that any material error has been disclosed. The First-tier Tribunal reached carefully reasoned findings in relation to the appellant’s claim. It was open to the Tribunal to find at [49] that the appellant “is far clearer about his detentions in 1996 and 2005 in his interview record than he is about his 2015 detention which could suggest that the 2015 detention did not occur”.
14. The Tribunal gave cogent reasons for finding that the appellant’s account of the 2015 detention was somewhat confused and inconsistent. This included that the appellant had stated that he was detained in August 2015 for three days (at paragraph [21] of his witness statement) whereas he stated at interview that he was detained for two days. He also claimed that he was told to report once a month whereas this did not appear in his witness statement. The appellant was on notice that the respondent was not satisfied, in the Reasons for Refusal Letter, that the appellant’s account of his 2015 detention was credible or consistent; including that he had stated at interview that he was required to report after one month but then said that he fled Turkey after two weeks because he heard the police were coming to locate him to report.
15. It was open to the Tribunal to find, at [44], that the appellant was unable to give dates in relation to his latest claimed detention in August 2015 and was unable to remember the date of his release. The judge also noted that the appellant was vague about when he had to report. The judge was entitled to take into consideration as she did that it was not credible in the context of this alleged 2015 detention that the appellant found an agent and effectively was able to leave Turkey on the same day as he made the decision to leave and that he remained at home for one to two weeks without the police coming to his house. The judge did not find that it made sense that if the police were interested in the appellant as claimed that they would wait for him to report, particularly if they had a signed paper from the appellant implicating him in something illegal; indeed the judge found it questionable that they would indeed have released him if he had signed such a paper. Although the appellant had given inconsistent details at interview about Kurdish parties in which he stated that he was involved, the judge did not place much weight on this apparent discrepancy as the appellant had suffered from a headache at that point of the interview.
16. However, considered in the round, the judge did find that the fact the appellant’s evidence suggested the police only visited on one occasion did not suggest a high level of interest in him.
17. The Tribunal also considered at [48] and [49] of the Decision and Reasons the medical evidence produced by the appellant. It was in this context that the judge stated that the appellant had not mentioned the sexual abuse in his witness statement or interview. Although, as already noted, it was common ground before me that the judge was mistaken about the lack of reference in the witness statement, it was not submitted by Mr Nathan that it was mentioned at interview; rather it is the appellant’s case, as he had said in his witness statement, that he found this difficult to talk about. However the judge was entitled to take into consideration, in the context of her general findings that the appellant’s account of his 2015 detention was generally vague and less detailed than that of his earlier detentions, that he had failed to mention the sexual abuse at interview. Although I accept that the appellant indicated in his witness statement that he found it difficult to talk about, there was no adequate explanation given as to why he would not mention the fact of this claimed sexual abuse at interview even if not able to talk about the detail of the sexual abuse.
18. It was open to the Tribunal to find, at [51], that there were no medical reasons given in the medical report as to why the appellant was in a position to recall his earlier detentions in more detail. Mr Nathan in his submissions about the judge’s findings on this point was attempting to introduce fresh grounds of appeal, which I am not satisfied were properly before me. In any event if they were, I am satisfied that this amounts to no more than a disagreement with the judge’s findings for which she gave adequate reasons.
19. Given the detailed analysis of the evidence and the reasons provided by the First-tier Tribunal for not finding the 2015 detention credible, this assessment could not have changed if she had not made the mistake that the appellant had not mentioned it in his witness statement. What the judge was referring to at [49] was the appellant’s general lack of detail in relation to the 2015 account which is not cured by his reference in his witness statement to sexual abuse in 2015.
20. In relation to the second ground, where it is alleged that the judge was requiring corroboration this must be considered in the context of the judge’s general findings in relation to the lack of detail and inconsistencies generally about the 2015 detention including the lack of adequate evidence of general interest in the appellant. The findings must also be considered in the context of the appellant’s own account, which was inconsistent in relation to his release; as it was unclear whether he was released on bail or simply told to report. The judge, in referring to the lack of any documentary evidence, was not requiring corroboration in her assessment of credibility but rather, was assessing the general level of interest in the appellant, if in the alternative he had been detained in 2015. There was nothing unreasonable or irrational in that finding. On a plain reading of the decision, I do not accept that the judge was requiring corroboration.
21. I am satisfied therefore that no material error of law was disclosed in either of the grounds argued. Even if there were, Mr Nathan was also incorrect in his interpretation of the judge’s findings at [54] where she found in the alternative if there was a 2015 detention that the appellant was not at risk taking into account the background country information and the case law. The judge set out in full the headnote for IK. It cannot be properly argued (as Mr Nathan suggested) that the fact that the judge did not repeat this at [54] means that she did not take it into consideration.
22. The judge found that there was no evidence to suggest that the appellant was likely to appear on the GBTS system given that there has never been any court intervention. It is evident from this finding that the judge was applying IK, which refers at paragraph 6 of the headnote to an entry in GBTS system. As already noted Mr Nathan referred to the appellant likely being returned on a one way travel document as discussed at paragraph 6 of IK, and claimed that there was a reasonable likelihood that he would be identifiable as a failed asylum seeker and could be sent to airport police for further investigation and that it was at this stage the 2015 detention would become apparent as additional enquiry could be made of the authorities in the local area.
23. Again I am satisfied that the judge considered and applied the relevant guidance including given that she found that “there has never been any court intervention” and then went on to consider that there was insufficient evidence to suggest that the appellant would be at risk and that she also took into account all the factors including that there was no evidence that his family were perceived to have an active pro-Kurdish role. These findings were open to the First-tier Tribunal and were more than adequate in the alternative to her findings that the 2015 detention was not accepted.
Summary
24. The decision of the First-tier Tribunal does not contain a material error of law and shall stand.

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. 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: 21 April 2017

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee was paid or is payable. Therefore I make no fee award.

Signed Dated: 21 April 2017

Deputy Upper Tribunal Judge Hutchinson