Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02260/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 21 December 2016
On 17 January 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

z s
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Joseph instructed by Turpin & Miller, Solicitors
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court proceedings.

Introduction
2. The appellant is a citizen of Afghanistan who was born on 1 January 1965.
3. The appellant arrived in the United Kingdom on 6 July 2015 and claimed asylum. He claimed that he faced persecution on return on the basis that he feared an Afghan warlord, ["H"] because he had made two police reports on 8 and 28 June 2015 as a result of his brother being killed in the crossfire between rival warlords in Afghanistan involving H's son. He feared retribution on return. In addition, the appellant claimed that he was at risk from the Taliban having received a "night letter" from them. In addition, he feared being accused of being an apostate after H's son had spread false rumours that the appellant had converted to Christianity.
4. On 16 October 2015, the Secretary of State refused the appellant's claim for international protection. The Secretary of State did not consider as credible the appellant's claim to be at risk on return to Afghanistan on any of the bases relied upon by the appellant. The respondent also rejected the appellant's claim under the European Convention on Human Rights.
The Appeal to the First-tier Tribunal
5. The appellant appealed to the First-tier Tribunal. As regards the appellant's claim to be at risk because he had reported H's son to the police, the judge accepted the appellant's account. However, the judge did not accept that the appellant would be identified by H on return unless he made a further report to the police.
6. In his written statement, the appellant had said that if he returned he would make a further report to the police. However, in answer to questions from the judge he stated that he would not raise a complaint to the police again (see para 16 of the determination). However, in re-examination, having been reminded of what he said in his witness statement, the appellant again said he would complain to the police.
7. In the light of this evidence, the judge did not accept that the appellant would make a complaint and, therefore, he would be at risk from H's son.
8. In addition, the judge was not satisfied that the appellant would be at risk from the Taliban or as a result of false accusations of apostasy.
9. The judge, therefore, dismissed the appellant's appeal on international protection grounds.
The Appeal to the Upper Tribunal
10. The appellant sought permission to appeal to the Upper Tribunal on the single ground that the judge had been wrong in law to reject the appellant's evidence in his witness statement and in re-examination that he would make a complaint to the police on return.
11. Permission to appeal was initially refused by the First-tier Tribunal but on 9 August 2016, the Upper Tribunal (UTJ Canavan) granted the appellant permission to appeal. UTJ Canavan gave the appellant permission to appeal on the basis of his grounds of appeal challenging the judge's factual finding that the appellant had not established he would make a complaint about H's son on return.
12. In addition, UTJ Canavan identified what she described as a 'Robinson obvious' point - one not raised in the appellant's grounds of appeal - that the judge had erred in law by failing to take into account the appellant's expert report in concluding that the appellant could safely internally relocate. In addition, the judge had failed to consider the evidence concerning the risk to the appellant on arrival at Kabul Airport.
13. On 31 August 2016, the Secretary of State filed a rule 24 notice seeking to uphold the judge's decision.
Discussion
14. Mr Joseph submitted that the judge had failed to give adequate reasons why he preferred the evidence of the appellant in answer to a question by the judge rather than the evidence in his witness statement and in re-examination. Mr Joseph did not suggest that there was any impropriety in the judge's conduct which is, in part, suggested in para 7 of the grounds. He accepted that the judge's questions were entirely proper. However, given that the judge accepted the remainder of the appellant's account and the appellant's credibility, he failed to give adequate reasons for preferring the appellant's answer given in response to the judge's questions.
15. The judge's reasoning is set out at paras 37-38 of his determination as follows:
"37. In short, I accept that the Appellant has established his account to the necessary standard. However, I do not accept that the Appellant would, in the face of the danger created through in June 2015, be motivated to raise any further police reports if he returned to Afghanistan. He had let matters lie for three years after making the initial report because he realised that further reports would be futile. I accept that the Appellant made a further police report on 28 June 2015 notwithstanding the difficulties that had arisen following the report on 8 June 2015, however he explained in his asylum interview that the later report was made specifically with the aim of making matters better for his family. Of course, by then the Appellant had gone into hiding and was planning his escape from the country.
38. Therefore, notwithstanding the appellant's claims in his witness statement and re-examination that he would make a further report if returned, I prefer the evidence he gave to me that he would not. My view is fortified by the fact that it is not suggested that the appellant has made any further complaint to the police in Afghanistan from the safety of the United Kingdom in the year or so that has passed."
16. As Mr Richards pointed out, UTJ Canavan granted permission on the sole ground relied upon by the appellant essentially on the basis that there was an implication of misconduct by the judge which Mr Joseph did not seek to pursue. Mr Richards submitted that it was clear from para 16 of the judge's determination, where he set out the appellant's answers in response to his questions, that the judge had not asked closed questions and the judge was perfectly entitled to place weight on the response given to his question rather than the appellant's other evidence. Mr Richards pointed out that it was not unexpected that the appellant would reverse his evidence in re-examination, in line with his witness statement, when it was pointed out to him. Mr Richards submitted that the judge's positive credibility finding was about the past. There was no inconsistency since the issue concerning what the appellant would do on return to Afghanistan was about the future. Mr Richards submitted that the judge had not disbelieved the appellant rather he had, faced with conflicting evidence, preferred one answer to the other. That was not a material error of law.
17. In my judgment, the judge did not materially err in law in reaching his adverse credibility finding.
18. In assessing the appellant's evidence, the judge was no doubt aware that he had made a positive credibility finding in accepting the appellant's account of what had occurred to him previously in Afghanistan. That did not absolve the judge from having to assess conflicting statements about his future intention made at the hearing. This was not a case where the appellant had said, for example, in re-examination that he had misunderstood the judge's question and that he had all along intended to say that he would make a complaint about his brother to the police on return to Afghanistan. Rather, this was a case where the judge was simply faced with conflicting evidence from the appellant. It was not a case of whether the appellant was telling the truth but rather which aspect of his conflicting statements were to be accepted as his future intention.
19. I accept Mr Richards' submission that it is clear from para 16 of the judge's determination that the appellant gave a number of detailed answers to the judge's questions, including the relevant one for the purposes of this appeal, which could not have been given as a result of closed questions. So, in relation to the issue of what he would do on return, the judge stated that the: "appellant said that he would never forget his brother and what happened to him but said that he would not raise the complaint to the police again." That cannot be the answer to a question which elicited either a 'yes' or 'no' answer.
20. At paras 37-38, the judge took into account that the appellant had made a second complaint on 28 June 2015 even though difficulties had arisen after the first complaint made on 8 June 2015. I do not accept Mr Joseph's criticism that the judge was wrong to take into account in the final sentence of para 38, in assessing what the appellant might do on return to Afghanistan, that he had not made a further complaint to the Afghan police whilst in the UK. Whilst Mr Joseph's point is not without merit that this is not something that could reasonably be expected of the appellant, it is clear from the judge's reasons that this did not form a basis for his finding in respect of what the appellant would do on return to Afghanistan. The final sentence in para 38 begins "my view is fortified by ...". It is clear that the judge has already reached his factual finding and that this reason, even if inappropriate, played no material part in the judge reaching his factual finding.
21. The judge plainly made his finding fully aware of his positive credibility finding in relation to the past events upon which the appellant relied. Given the discrepant account in his oral evidence, and the absence of any explanation as to why the appellant had given conflicting answers in his oral evidence, it was properly open to the judge to find that the appellant had failed to establish, even on the lower standard applicable in international protection cases, that he would make a complaint to the police on return. The judge, of course, did this by preferring the evidence given to him by the appellant in his oral evidence. That the judge made a positive finding against the appellant rather than simply one that the appellant had not proved this aspect of his claim, cannot, in my judgment, amount to a material error of law.
22. I turn now to the two points raised by UTJ Canavan in her grant of permission. Mr Joseph (who had drafted the appellant's grounds of appeal) placed reliance upon these new points.
23. First, at paras 39-40, the judge reached his finding that the appellant would not be at risk from the Taliban, as an apostate or from H's son outside Nangarhar Province:
"39. It was the Appellant's own evidence that he was untroubled by [H's son], the Taliban or any accusations of apostasy during the period of time he spent in Kheva, having fled his home town and before leaving the country. It was Mr Foxley's opinion that the Appellant would not be a likely target for the Taliban (in the expert's words, he would be 'small fry'). Neither have I any grounds to believe to conclude that there is a real risk that the Appellant would come to the attention of [H's son] if he returned to a place outside Nangarhar Province, given that he would be unlikely to make further reports about his brother's death.
40. In conclusion, I accept the Appellant's account of the troubles he suffered in Afghanistan in 2015. However, I do not believe that there is a real risk of the Appellant being persecuted for imputed religious belief if returned outside of Nangarhar nor do I believe that there is a real risk of his suffering significant harm from H or others. The threat the Appellant faces comes not from state actors but from private individuals. In the circumstances, I am satisfied that internal relocation to Kabul would be reasonable and that the Appellant would not be at risk in such a location."
24. Mr Joseph relied upon para 40 of the expert report of Mr Foxley, in particular that it stated that it was "very plausible" that H would have connections and supporters in Kabul and central government such that "this could put the appellant at risk if he were returned to Kabul and Nangarhar Province."
25. It is clear from the judge's determination at para 21 that Mr Joseph (who then also represented the appellant) in identifying any risk to the appellant outside Nangarhar Province placed reliance solely upon him being located as a result of a further complaint being made. Mr Joseph accepted that, although he had referred to Mr Foxley's report in para 3 of his skeleton argument including para 40, he had not taken the point further. Indeed, in para 5 of Mr Joseph's skeleton argument, it is clear that Mr Joseph's reliance upon Mr Foxley's report was only to establish that the appellant would be at risk if he made a further complaint. That may well explain why Mr Joseph did not seek to make this point in his grounds of appeal seeking to challenge Judge O'Brien's decision.
26. In para 39, Judge O'Brien noted that the appellant had been able to spend some time outside his home town before leaving the country without any difficulty whether from H's son or from the Taliban or as a result of the accusations of apostasy.
27. Judge O'Brien was plainly aware of Mr Foxley's report and at para 32 he described him as giving some "useful evidence about the situation both in 2012 and afterwards in Afghanistan and also some useful expert opinion on the influence of [H's son]". He clearly had that in mind when he reached his finding in paras 39 and 40 that the appellant had failed to establish that he would be at risk from H's son.
28. Having noted the fact that the appellant was safe in Afghanistan prior to leaving the country, and taking all the matters into account that were relied upon, I am unable to say that the judge's finding that the appellant failed to establish that he would not be safe in Kabul was irrational or inadequately reasoned.
29. The second point made by the Mr Joseph, relying upon the 'Robinson obvious' points raised by UTJ Canavan, relies upon paras 54-56 of Mr Foxley's report and a potential risk to the appellant on arrival at Kabul Airport. It is far from clear to me that Mr Joseph placed any weight upon this evidence before Judge O'Brien. Paragraph 54 of the report is referred to in para 3 of Mr Joseph's skeleton argument but nothing further is made of that in the detail of the skeleton argument thereafter. It also does not appear to have formed part of Mr Joseph's oral submissions summarised at paras 20-22 of the determination. Before me, Mr Joseph submitted that Mr Foxley's report identified a risk of the appellant, being questioned on arrival at Kabul, and it being discovered that he had been accused of apostasy and had become entangled with a prominent Nangarhar warlord family.
30. As Mr Foxley makes plain at para 54:
"I cannot give a confident assessment about the level of risk he might face from security forces upon his arrival at Kabul Airport."
31. I accept Mr Richards' submission that Mr Foxley's views expressed at paragraph 54-56 are largely speculative. He offers no basis upon which the appellant's background would become apparent. There is no obvious reason why the appellant would disclose his "entanglements" with H's family or that he had been wrongly accused of apostasy. It is simply wrong to suggest that the appellant might have to lie on return. Of course, an appellant cannot be expected to lie about an important aspect of his life, for example his sexual orientation, but there is no reason why he would be required to disclose a false accusation of apostasy or, indeed, his entanglement with a prominent Nangarhar warlord family. Mr Foxley's report at paragraphs 55-56 which is relied upon provides no basis as to how the appellant's background would otherwise become known.
32. For all these reasons, I see no basis upon which the appellant could succeed in reliance upon Mr Foxley's report at paragraphs 54-56. Even if, despite Mr Joseph's lack of specific reliance upon any risk on return at Kabul Airport, it could be said that the judge failed to consider this evidence, that failure could not, in my judgment, be a material error and which would justify setting aside Judge O'Brien's determination.
Decision
33. For these reasons, the First-tier Tribunal's decision to dismiss the appellant's appeal on international protection grounds did not involve the making of an error of law. Its decision stands.

Signed

A Grubb
Judge of the Upper Tribunal