Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01769/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2016
On 11 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

Z A H
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Ball, Counsel, instructed by J D Spicer Zeb Solicitors
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Miller (the judge), promulgated on 26 August 2016, in which he dismissed the appeal on all grounds. That appeal was against the Respondent's decision of 9 February 2016 refusing the Appellant's protection and human rights claims.
2. The essence of the Appellant's claim was as follows. He had been in this country studying for a period of time after which he returned to Afghanistan in order to re-establish himself there. In his home village in the Nangarhar province he heard the local Imam speaking out against the West and took exception to this. He expressed his views to some relatives outside the mosque, however these views were overheard by others. A week later he stood up in the mosque and defended himself. As a result of this the Appellant asserted that he was individually targeted by extremists. This ultimately led to him fleeing the country and returning to the United Kingdom in 2015.

The judge's decision
3. The judge rejected the Appellant's account of having been threatened and targeted as a result of expressing his views. Under the section entitled 'My conclusions', in paragraph 34 the judge states:
"Ill-treatment does not cross the threshold of severity into persecution, even taken cumulatively, unless there are particularly strong and credible elements. The test of persecution is and must be kept at a high and demanding level."
In support of this the judge cites the well-known decision of the House of Lords in Horvath.
4. In paragraph 35 the judge goes on to state adverse credibility findings in subparagraphs (i) to (v). In essence it would be appropriate to describe these as plausibility issues rather than inconsistencies as such. In particular the judge found it to be implausible that an intelligent and educated person such as the Appellant would have allowed himself to have been overheard expressing controversial views outside the mosque in his home village, or subsequently standing up in the mosque. He did not accept that the Appellant would have stood himself out, as it were, in the presence of others given the security issues in Afghanistan. In turn the judge did not accept that the Appellant was directly threatened. He finds that a letter said to come from the Taliban was not reliable and that witness statements from others provided very late in the day carried little if any weight.
5. In paragraph 39 the judge goes on to find that even if the Appellant had been credible there was no reason in his view as to why he [the Appellant] could not live in Kabul by way of relocation. Reference is made to the Respondent's Country Information Guidance document of July 2016. The asylum claim failed and the judge concluded that in light of that the Article 3 claim would also fail.
6. In respect of Article 8 the judge states that on the facts as found by him there would be no very significant obstacles to the Appellant reintegrating into life in Afghanistan. Thus the appeal was dismissed.

The grounds of appeal and grant of permission
7. There are effectively three grounds of appeal. Ground 1 relates in particular to what is said in paragraph 34 of the judge's decision. It is asserted that the judge has applied too high a standard of proof in respect of his assessment of credibility. Within ground 1 it is also said (paragraphs 18 and 19) that the judge had overlooked material evidence from the Appellant, which went to the issue of why he said what he did in his home village.
8. Ground 2 relates to the judge's dismissal of the Article 3 claim but more particularly in respect of a failure to consider Article 15(c) of the Qualification Directive. It is said that this element of the case was argued before the judge and should have been dealt with in detail.
9. Ground 3 relates to an alleged inadequacy in the assessment of the Article 8 claim.
10. Permission to appeal was granted in somewhat tentative terms by First-tier Tribunal Judge Cruthers on 15 September 2016.

The hearing before me
11. Mr Ball initially focused on paragraphs 18 and 19 of the grounds of appeal, and referred me to one of the Appellant's witness statements at pages 95 to 96 of the bundle that I have now marked AB1. Therein, the Appellant asseted that he was used to speaking freely and that he though he was safe because of the familial ties to the village. Mr Ball submitted that the judge simply did not take this relevant evidence into account. The evidence was relevant because it went to explain why the Appellant might have expressed his views as he claimed to have done in his home village. Given that the judge did not accept that the Appellant would have said what he said, the evidence was material. Mr Ball also relied on what he described as a misdirection in law contained at paragraph 34 of the judge's decision. Mr Ball submitted that too high a threshold to the assessment of credibility had in fact been applied.
12. In respect of Article 15(c) Mr Ball relied on passages from the UNHCR Guidelines 2016. In fairness to him, given that he had not represented the Appellant before the First-tier Tribunal, he could not say precisely what had or had not been argued before the judge, nor precisely what country information had been specifcally referred to. There are a number of bundles on my file and I have to say it is somewhat unclear as to what in fact was used at the hearing below, although I am guided to an extent by paragraph 15 of the judge's decision. Mr Ball directed me to the skeleton argument and extracts from country information that were before the judge and he argued that the evidence disclosed that there had been a rise in civilian deaths in Kabul since the decision in AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC) was decided back in 2012. Mr Ball submitted that the first limb of the Article 15(c) assessment was at least arguably satisfied. In respect of the second limb of the Article 15(c) assessment, it again was arguable that the Appellant's own background (notwithstanding the adverse credibility findings of the judge) would have created a risk profile for him should he relocate to Kabul. Mr Ball suggested that the judge should have considered the issue and his failure to do so was, all things considered, material.
13. In respect of the Article 8 ground Mr Ball did not abandon it but made no submissions upon it.
14. In respect of the Article 8 point Mr Singh submitted that the Appellant simply could not have succeeded on this basis if the protection claim had failed.
15. On the credibility issue he submitted that Mr Ball's interpretation of paragraph 34 was wrong and I was referred to paragraphs 3 to 5 of the judge's decision. Mr Singh pointed out that at the beginning of paragraph 35 the judge had stated that he had taken all the evidence into account. It was clear enough that the judge had had all the relevant information in his mind when making the credibility assessment and that a judge is not bound to refer to each and every element of the evidence when reaching a decision.
16. On the Article 15(c) issue Mr Singh submitted that none of the evidence showed that there was a sufficiently serious level of violence in Kabul for the first limb of Article 15(c) to be satisfied. In respect of the Appellant's own particular circumstances it was said that he had stopped working for the United States company back in 2009 and that his case before the First-tier Tribunal had not been put on the basis that his history would in itself create a risk to him in Kabul or indeed anywhere else.
17. In reply Mr Ball reiterated his point that paragraph 11 of the witness statement at pages 95 to 96 of AB1 was relevant and should have been factored in. In respect of Article 15(c) he again accepted that he could not comment with precision as to what was or was not said before the judge but the information should have been looked at in detail in any event.
18. Both representatives were agreed that if I were to find that there were material errors of law in respect of the credibility findings the appeal would have to be remitted. If however any errors of law related solely to the Article 15(c) argument the matter could be retained in the Upper Tribunal and that the appeal should be adjourned for a resumed hearing in due course so that updated country information could be provided.

My decision on error of law
19. I conclude that there are no material errors of law in the judge's decision.
20. Dealing first with the credibility issue, in my view, and with respect to Mr Ball, he has misinterpreted what the judge is in truth saying at paragraph 34 of his decision. The judge is not indicating there that he was applying too high a standard of proof to the assessment of credibility. Rather he is simply setting out his own formulation as to what constitutes persecution for the purposes of a claim under the Refugee Convention. The well-known decision in Horvath is cited in support of his proposition and having regard to well-known materials such as the UNHCR's handbook, Professor Hathaway's seminal work on the law of refugees and indeed Article 9 of the Qualification Directive, it is right to say that treatment must reach a serious level in order for persecution to be shown. Secondly, and taking the judge's decision as a whole, I refer back to paragraphs 3 to 5 of his decision. In paragraph 3 the judge clearly directs himself correctly to the lower standard of proof applicable in asylum appeals, and at paragraph 4 he reiterates that the same standard applies to humanitarian protection claims. Taking these two points together I conclude that the judge has not misdirected himself in law and this element of the Appellant's challenge fails.
21. Turning to the adverse credibility findings themselves as set out in paragraph 35 of the decision, I note firstly that the judge has quite properly stated that he has considered all of the evidence before him. He makes this statement immediately prior to setting out his adverse findings and for my part I would be cautious to disregard this statement when assessing what follows. Before me Mr Ball accepted that he had no criticisms of what the judge says in paragraph 35(i) and (ii). He was right to do so. These points were perfectly open to the judge based upon the evidence before him. To that effect it was open to the judge to find that the Appellant was intelligent, well-educated, and would have been very well aware of the risk of saying anything untoward in or around a mosque. This is the context in which what follows must be viewed.
22. In paragraph 35(iii) and (iv) the judge finds that it was simply implausible that the Appellant would have expressed controversial views with anyone other than those whom he knew very well, in particular his cousin and uncle. On the face of it, it was open to the judge to find that the Appellant simply would not have allowed himself to speak in such a way that there was a possibility of others overhearing what he was saying, giving the consequences to the Appellant if this in fact occurred. The judge was also, on the face of the account, entitled to find that the Appellant would not have placed himself at what would appear to be significant risk by standing up openly and taking issue with what the Imam had been saying.
23. Before I consider the issue of the 'overlooked' evidence, I turn to paragraph 35(v). Here the judge makes an additional adverse finding, namely that it was implausible that the Appellant would have sought to argue with armed men following the matters arising in the previous subparagraphs. I note that this particular point has not been expressly challenged in the grounds or before me.
24. I now turn to the evidence of the Appellant contained at paragraph 11 of his witness statement at pages 95 to 96 of AB1. The statement was presumably prepared in preparation for the appeal before the judge. In a response to the reasons for refusal letter, the Appellant states as follows:
"I was expressing what I had seen for myself. It was my home village in my homeland. I never thought that the consequences would be that great. I am used to talking in a straightforward manner. It seems normal for me to speak in this way but for others it was a big issue. My mindset had totally changed. It was not very difficult for me to change my mindset as I had spent the most productive years of my life in the UK from the age of 23 which has affected me a lot. I did not target them (others in the audience) directly. My audience were people from my village, my cousin and uncle. They have people everywhere. This is an example of that as they were informed what villagers say about them. (By they I take it to mean the Taliban). I never imagined that the village where my dad and granddad had lived would be harmful to me as I was so confident but I was wrong."
25. This evidence forms the central basis for Mr Ball's submission that the judge had materially erred in failing to have regard to relevant matters when assessing credibility. With respect to Mr Ball and his concerted efforts on behalf of the Appellant I disagree for the following reasons.
26. First, as mentioned already the judge has specifically said that he had had regard to all evidence in the case, and this would include the evidence contained in the statement prepared for the appeal. In my view and on a proper and holistic reading of the judge's decision he has indeed taken this part of the evidence into account albeit the particular expression and source of it has not been set out in terms. What the judge is effectively saying in paragraph 35(i) to (iv) is that in light of the Appellant's circumstances and his knowledge of the prevailing situation in Afghanistan it was simply implausible, even on the lower standard of proof, that he would have placed himself at such risk by speaking or by expressing controversial views. Implicit in this in my view is a clear rejection of the purported explanation made by the Appellant in the appeal statement. In other words, the Appellant was seeking to say that it was quite understandable for him to have said what he said and where he said it whereas the judge has concluded on the evidence as a whole this simply would not have been the case.
27. Second, it is true that a judge does not have to have regard to each and every aspect of the evidence when reaching a decision.
28. Third, in any event I do not see that even if there was a failure to have specific regard to this evidence it could have made any material difference. The judge's concerns on credibility were not confined to a single incident alleged to have occurred by the Appellant but several, namely his conversation outside the mosque, speaking up against what the Imam had been saying, and in addition seeking to argue with armed men. These it seems to me should be seen cumulatively. In addition there are other adverse points taken against the Appellant in paragraphs 36 and 38 and these cannot properly be left out of account given that a decision of a judge should be looked at in the round, although I accept that what is said in paragraph 35 is, as Mr Ball put it, the lynchpin of the adverse credibility findings.
29. In light of the above the challenge to the credibility findings fails.
30. I turn next to ground 2. Although it was not specifically canvassed with me at the hearing, there is reference to a failure to address Article 3 independently from the refugee claim. For the sake of completeness I reject that ground of challenge. There is no arguable basis upon which the Appellant could have succeeded under Article 3 on the findings of fact reached by the judge when his asylum claim had already failed.
31. Next comes the Article 15(c) point. It is correct that Article 15(c) was raised in the grounds of appeal to the First-tier Tribunal and is dealt with in the skeleton argument. It is correct also that the judge has not made any specific reference to Article 15(c) in his decision. To that extent it can perhaps properly be said that he has erred in failing to address a matter raised before him on behalf of the Appellant.
32. The real question in this case is whether the error was material. In my view, having taken all of the circumstances in this case into account, it was not. I say this for the following reasons.
33. First, the judge has made an alternative finding that it would be reasonable for the Appellant to have relocated to Kabul. This alternative finding has not been challenged by the Appellant. This point undermines the Appellant's argument as regards Article 15(c) because a number of the potential factors which might have been prayed in aid as standing the Appellant out from the crowd (placing him at an individualised risk) have been effectively considered and rejected. In other words, the judge found that the Appellant could reasonably live in Kabul, and this conclusion is unchallenged.
34. Second, having regard to the skeleton argument before the First-tier and the Record of Proceedings (as best as I can decipher it) I do not see a schedule of particular references to the country information to which the judge's attention had been drawn. Mr Ball did not represent below and could not be precise as to what was or was not referred to or submitted on the Appellant's behalf in regards to Article 15(c). He has helpfully not only provided me with the skeleton argument but also extracts from country information that I accept were placed before the judge.
35. The skeleton argument asserts that "caution" should be applied to the conclusions in AK. However, I see no submission in terms that AK should be departed from (with reference to the Practice Directions or, for example, what is said in SG (Iraq) [2012] EWCA Civ 940 about the strength of the evidence and reasoning required to justifiably refuse to follow a designated country guidance decision). Nor does the skeleton include references to specific country information linked to the Article 15(c) issue.
36. Third, Article 15(c) contains two limbs the first of which is the need to establish that there is a state of internal armed conflict giving rise to the serious individual threat to life or person by virtue of indiscriminate violence. In the circumstances of this case it needed to be shown by the Appellant that such a situation pertained to Kabul at the relevant time.
37. Having regard to the skeleton argument, the extracts of country information provided (which include amongst other items the UNHCR Guidelines 2016 and country information reports produced by the Respondent) and the country information contained in the Appellant's bundle (which as far as I can tell was before the First-tier Tribunal - indexed and paginated 1 to 228), it was unarguable that the first limb of Article 15(c) could be satisfied in respect of Kabul as at the date of the hearing before the judge. Nothing in the Naziri proceedings assists the Appellant in respect of Kabul (particularly when the judge's conclusion on internal relocation is factored in). As I see it, there was no proper basis upon which the judge could have properly concluded that AK should be departed from. There was simply insufficient evidence to show that any and all civilians in the capital would be at risk. In respect of the Appellant's particular circumstances Mr Ball's arguments faces a couple of obstacles here. Aside from the fact that the judge's conclusion on internal relocation is not challenged (see above), the Appellant's case before the First-tier Tribunal was not argued on the basis that his own history (having worked for a US company until 2009) would have placed him at real risk in Kabul or indeed anywhere else. Thus it is very difficult now for the Appellant to be suggesting that this element of his background would place him at risk. It seems to me that this is, with all due respect to Mr Ball, a question of making what might otherwise be a decent point before the First-tier Tribunal too late in the day. In this regard I also note that the UNHCR Guidelines risk category to which I have been referred to by Mr Ball relate very much to the argument that I have just rejected, namely that the Appellant's history would stand him out, as it were, notwithstanding the adverse credibility findings made by the judge in respect of what occurred in the home village.
38. Fourth, the grounds assert that the judge had failed to follow the terms of the Respondent's guidance as set out in the Country and Information Guidance document dated July 2016. Reference is made to paragraph 3.1.4 of that document. Having read the entirety of the policy summary for myself I fail to see how the judge has wrongly interpreted the guidance contained therein. Indeed, the policy summary entirely supports what the judge has said in paragraph 39 of his decision. This also has a bearing on the Article 15(c) point because the country information guidance document says in terms that in view of the Respondent there was no internal armed conflict in Kabul.
39. In light of all of the above the Appellant's challenge on the Article 15(c) issue fails as well.
40. I turn finally to the Article 8 challenge. In my view Mr Ball was right not to pursue this point with any vigour. I cannot for my part see any basis upon which the Appellant could succeed under Article 8 in light of the facts as found by the judge.
41. For all these reasons the Appellant's appeal to the Upper Tribunal fails and the decision of the First-tier Tribunal stands.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The Appellant's appeal to the Upper Tribunal is dismissed and the decision of the First-tier Tribunal stands.

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 Date: 10 November 2016
Deputy Upper Tribunal Judge Norton-Taylor