Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02014/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 16 August 2016
On 31 August 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

AGW
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Joseph instructed by Virgo Consultancy Limited
For the Respondent: Mr I Richards, Home Office Presenting Officer

DECISION AND REASONS

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.

Introduction
1. The appellant is a citizen of Pakistan who was born on [ ] 1973. He arrived in the United Kingdom on 17 April 2015 as a visitor. On 30 July 2015 the appellant claimed asylum.
2. The basis of his claim was that he was a prominent Roman Catholic Christian in Pakistan who had been involved in demonstrations dating back to 2011. He claimed that on 25 January 2015 a First Information Report ("FIR") had been issued against him accusing him of blasphemy and, as a result, he was at risk of persecution under the blasphemy laws in Pakistan. Further, he claimed that a fatwa had been issued against him and posted on his house door on 29 March 2015 calling for his death for dishonouring Islam. Subsequently, the appellant also relied upon a fatwa posted through his letterbox on 13 November 2015 to like effect. The appellant claimed that, as a consequence, he was at risk of persecution for a Convention reason on return.
3. On 12 October 2012, the Secretary of State rejected the appellant's claim for asylum and humanitarian protection and under Art 8 of the ECHR.
The Appeal to the First-tier Tribunal
4. The appellant appealed to the First-tier Tribunal. In a determination sent on 27 April 2016, Judge Richards-Clarke dismissed the appellant's appeal on all grounds. First, the judge found that the FIR was not genuine. Secondly, the judge made an adverse credibility finding relying upon the appellant's production of a false FIR and his delay in claiming asylum for over three months after his arrival in the UK. Thirdly, applying the Country Guidance case of AK and SK (Christians: Risk) Pakistan CG [2014] UKUT 00569 (IAC), the judge concluded that the appellant had failed to establish that he would be at risk on return. In addition, the judge dismissed the appellant's appeal under Art 8.
The Appeal to the Upper Tribunal
5. The appellant sought permission to appeal to the Upper Tribunal on a number of grounds including that the judge had erred in law in taking into account the appellant's delay in claiming asylum in reaching her adverse credibility finding; that she had erred in law in relying upon a Document Verification Report ("DVR") to conclude that the FIR was not genuine; that the judge had failed properly to consider the risk to the appellant including, in applying AK and SK, confusing the appellant's claim based upon a risk of being prosecuted under Pakistan's blasphemy laws with a risk from non-state actors as a result of the fatwas.
6. On 26 May 2016, the First-tier Tribunal (Judge Nightingale) granted the appellant permission on limited grounds. The judge refused permission in respect of the challenge to the judge's adverse credibility finding based upon her taking into account the appellant's delay in claiming asylum after arriving in the UK. However, the judge granted permission on the remaining grounds.
7. On 9 June 2016, the Secretary of State filed a Rule 24 notice seeking to uphold the judge's decision, in particular her finding in relation to the FIR and her consequential adverse credibility findings in general.
8. Thus, the appeal came before me.
Discussion
9. Mr Joseph, on behalf of the appellant challenged first the judge's reasoning in para 24 in reaching her conclusion that the FIR was not genuine and, secondly he challenged her reasoning, primarily in para 25 of her determination, that led her to reject the appellant's claim based upon a risk from non-state actors.
10. I deal first, therefore, with the judge's reasoning in relation to the FIR. That is set out in para 24 of her determination as follows.
"Second, I am unable to rely on the First Information Report (FIR) dated 25 January 2015 relied on by the Appellant. The conclusion of the Respondent in the Document Verification Report [at Y1 of the Respondent's bundle] is that the Verifier is 'satisfied to a very high degree that the document checked is not genuine.' This finding was put to the Appellant in the Reasons for Refusal Letter 12 October 2015 at paragraph 38 and on the evidence before me this finding had not been challenged by the Appellant beyond suggesting that the document could not be found at the Police Station due to the lack of computer records. I therefore rely on the Respondent's Document Verification Report and find that the FIR is likely to not to be genuine. Given this finding I am also unable to place reliance on the arrest warrants 14 March 2015 [L1 of the Respondent's bundle], 26 May 2015 [N1 of the Respondent's bundle] and 12 August 2016 [01 of the Appellant's bundle] as all refer to the FIR dated 2 January 2015. As I have found this FIR likely not to be genuine I also find these are likely not to be genuine. These findings do undermine the Appellant's credibility."
11. Mr Joseph submitted, relying upon paras 12 and 13 of the grounds, that the judge had not been entitled to rely on the DVR given the DVR was based upon a telephone conversation with an unknown individual and the appellant gave evidence challenging the DVR in that there were no computer records (he claimed) held at the police station. The judge should have considered the FIR as part of all the evidence applying the principles in Tanveer Ahmed [2002] UKIAT 00439 and should have determined its reliability rather than whether it was genuine.
12. I do not agree. There was nothing wrong, in principle, in the judge finding that the FIR was not genuine rather than, as is the usual case, applying Tanveer Ahmed principles and assessing the documentary evidence in the round and determining its reliability. If there is sufficient evidence to establish - the burden being on the respondent - that a document is false or not genuine then a judge is entitled to make such a finding. Consequently, the issue in this appeal is whether the evidence was adequate to entitle the judge to reach the finding that the FIR was not genuine. As I pointed out to Mr Joseph in submissions, the essence of his challenge was that the evidence could not rationally lead a judge to make the positive finding that the FIR was not genuine.
13. The DVR is helpfully set out in para 38 of the respondent's decision as follows:
"Further, you have submitted a copy and translation of FIR no. 17/15 which you allege was filed at the Nishter Town Police Station in Lahore on 25 January 2015. However, information received from the British High Commission, Islamabad has provided the following:
I called the Lahore Police Control and asked the operator to provide me the telephone number of Nishter Town Police Station in Lahore and he told me no such police station named as Nishter Town police station exists in Lahore. He told me it is Nishter Colony Police Station and not Nishter Town as written in the copy of FIR provided by the applicant.
Anyhow, I contacted the report writer of Nishtar Colony police station Lahore and provided him the FIR number and date. The report writer after checking all the record confirmed that the date and details of this FIR do not match the records held by the Nishter Colony Police Station Lahore and confirmed that FIR number 17/15 dated 25/01/2015 of Nishtar Town police station Lahore provided by the applicant is non-genuine (DVR)."
14. In my judgment, the judge was perfectly entitled to rely upon the DVR despite the appellant's evidence (not independently supported) that the police station lacked "computer records." What the DVR states is that a relevant person was contacted at the appropriate police station and "after checking all the records" confirmed that there was no match on the "records" of an FIR with the number and date on the FIR submitted by the appellant. Even though the person contacted was not named the judge was, in my judgment, entitled to rely upon this evidence to establish that the claimed FIR was, in fact, not genuine. Records were checked - even if not computer records - and there was no evidence to contradict the evidence contained within the DVR that the relied upon document was genuine.
15. For these reasons, I reject the appellant's challenge to the judge's finding in para 24 that the FIR was not genuine.
16. That, in effect, inevitably led to the rejection of the appellant's claim based upon the risk to him of being subjected to the blasphemy laws in Pakistan.
17. Turning now to the risk to the appellant from non-state actors, the judge dealt with this primarily in para 25 as follows:
"25. Third, with respect to the Fatwa dated 29 March 2015 and the Fatwa dated 13 November 2015 the evidence before me does not suggest that this is being actively pursued and in accordance with AK and SK (Christians: risk) Pakistan CG [2014] UKUT 00569 (IAC) 'A blasphemy allegation, without more, will not generally be enough to make out a claim under the Refugee Convention. It has to be actively followed either by the authorities in the form of charges being brought or by those making the complaint.' The Appellant's wife and children remain in Pakistan and although it is claimed that two men came to the Appellant's home on 15 November 2015 looking for the Appellant these men fled when the door was opened and the Appellant's wife has now filed a First Information Report with the Police about this incident. Further given the findings in relation to the Appellant's credibility I have attached little weight to two produced Fatwas or the claimed events of 15 November 2015. In any event I find that the evidence here does not suggest and I do not find that these Fatwas relied on by the Appellant are being actively pursued and therefore that these Fatwas, even if genuine, are not enough to make out a claim under the Refugee Convention."
18. Mr Joseph challenged the judge's reasoning in para 25. He submitted that the judge had wrongly confused the risk to the appellant from the state (under the blasphemy laws) with that from non-state actors (based upon the two fatwas). He submitted that the question of whether the fatwas were being "actively pursued" was to confuse the approach set out in AK and SK when considering whether there was a risk to an individual as a result of a blasphemy allegation.
19. Mr Richards acknowledged that this latter point had some merit but, nevertheless, submitted that it was immaterial to the judge's decision if she were, in fact, entitled to find that the fatwas were unreliable. That, Mr Richards submitted, was precisely what the judge had done in para 25 and that finding was legally sustainable.
20. It is clear from AK and SK that the Upper Tribunal, when considering allegations of blasphemy made against Christians, considered that a risk of persecution and, therefore, a claim under the Refugee Convention required that such an allegation:
"... has to be actively followed either by the authorities in the form of charges being brought or by those making the complaint. If it is, or will be, actively pursued then an applicant may be able to establish a real risk of harm in the home area and an insufficiency of state protection." (See para 6 of the head note).
21. To that extent, therefore, it would appear that the judge wrongly conflated the distinct issues of whether a prosecution under the state blasphemy laws was being pursued with the risk to the appellant from non-state actors evidenced by (so it was claimed) the two fatwas.
22. However, as Mr Richards submitted, any error would be immaterial if the judge was entitled to find that the fatwas were, in effect, unreliable and therefore provided no support for the appellant's claim to be at risk from non-state actors.
23. In respect of that, Mr Joseph made a number of submissions. First, the judge's reasoning was undermined by his unsustainable finding that the appellant had submitted a false FIR. That submission cannot, of course, succeed since (as I concluded above) the judge was entitled to find that the FIR was not genuine. That, as the judge pointed out in the final sentence of para 24, was a matter which undermined the appellant's credibility.
24. Secondly, Mr Joseph submitted that the judge had failed to take into account a newspaper report (in translation at page 32 of the bundle) from the "Daily 'Ausaf' Lahore" which supported the appellant's evidence that an incident had occurred at the appellant's home on 15 November 2015 when two unknown persons had knocked on the door of the family home asking to see the appellant and issuing threats before fleeing. Mr Joseph submitted that the judge had failed to take that evidence into account.
25. It was clearly relevant in assessing the appellant's credibility that the judge had found (sustainably in my judgment) that the FIR submitted in support of his claim was not genuine. Equally, it was relevant to take into account, as the judge did at para 23 of her determination, that the appellant had delayed for no acceptable reason over three months after arriving in the UK or claiming asylum. Although that reasoning was challenged in the grounds, permission was not granted upon that aspect of the grounds of appeal and so the judge's reasoning stands. There were, therefore, significant reasons for doubting the appellant's credibility.
26. It is clear to me that in para 25, although the judge made no mention of Tanveer Ahmed, she was engaged in considering the reliability of the documents (in particular the fatwas) on the basis of all the evidence in the round. As regards the claimed incident on 15 November 2015, the judge does refer to it in para 25. I accept that the judge made no specific reference to the news report dated 7 January 2016 which refers to the claimed incident on 15 November 2015 at the appellant's home. However, given the weight of the judge's reasoning, in particular in respect of the false FIR but also the issue of delay in claiming asylum, I am unable to conclude that that document would, in itself, have affected the judge's conclusion in para 25 of her determination in particular. The report lacks any real independent source as it is, in fact, largely a report in the first person from the appellant's wife.
27. In my judgment, the judge's adverse finding in relation to the fatwas and the evidence concerning the appellant's risk from non-state actors was one rationally open to her on the evidence.
28. In any event, given that the judge sustainably found that the appellant was not being pursued under the blasphemy laws, her conclusion in para 26 that the appellant could internally relocate was entirely consistent with the country guidance case of AK and SK where, as summarised at para 8 of the head note, it is stated:
"Relocation is normally a viable option unless an individual is accused of blasphemy which is being seriously pursued; in that situation there is, in general no internal relocation alternative."
29. There was nothing of substance in the evidence before the judge which would, given the appellant's financial and other circumstances in Pakistan (and including the fact that he is a Roman Catholic Christian), undermine that finding in any event.
30. Mr Joseph did not pursue any argument that the appellant would be at risk on return as a Roman Catholic Christian if the judge's adverse findings in relation to the risk to the appellant from the state (on the basis of the blasphemy laws) or non-state actors (on the basis of the fatwas) were legally sustainable. In those circumstances, the appellant falls clearly within the situation set out in AK and SK at para 1 of the head note that:
"Christians in Pakistan are a religious minority who, in general, suffer discrimination but this is not sufficient to amount to a real risk of persecution."
31. The appellant does not fall within any of the contemplated risk matrixes in AK and SK.
Decision
32. For the above reasons, the First-tier Tribunal's decision to dismiss the appellant's appeal on asylum grounds did not involve the making of an error of law such that its decision should be set aside.
33. The First-tier Tribunal's decision to dismiss the appellant's appeal on all grounds stands.

Signed

A Grubb
Judge of the Upper Tribunal
Date 31st August 2016