Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02283/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision Promulgated
on 21 April 2017
on 25 April 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

M F
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Mozham of Burton and Burton Solicitors
For the Respondent: Mr C Bates Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Lodge ('the Judge') who on 8 November 2016 dismissed the appellant’s appeal on all grounds against the respondent’s refusal of his protection application and/or application for leave to remain on human rights grounds.

Background

2. The appellant is a national of Iran born on 9 March 1998. The Judge notes the basis of the appellants claim and the evidence provided in support thereof before setting out the findings of fact at [30 – 71] of the decision under challenge. The Judge did not find the appellant to be a credible witness. The Judge’s reasons for doing so can be summarised as follows:

i. There is an inherent plausibility about a boy aged 10 attending pop concerts without his parents and being identified as a rapper at that age especially in light of the appellant’s answer to his asylum interview, question 116, that his parents would not let him participate in such meetings because rap music was a problem in Tehran [34].

ii. It was not accepted in light of the fact the appellant’s father was described as a strict traditionalist that the appellant would have been permitted to participate in an apparently subversive movement. The appellant’s explanation that from the age of seven he was free as his parents were only concerned about themselves was found to contradict his assertion that his father woke him every day to insist on his doing his religious duties, at the very least his parents would have wanted to know where he was going and what he was up to [35]

iii. The appellants claim that around the age of 10 or 11 he was starting writing his own songs and selling them and that without the help or encouragement of his parents he was running a burgeoning rap business, creating and producing CDs, was not accepted as being plausible [36].

iv. The appellant’s claim that he approached the Ministry of Information when aged 14 was not found to be credible as the Judge did not accept that a 14-year-old would have access to the Ministry of Information or go there unbeknown to his father to seek a permit to distribute music, knowing in advance that rap is unacceptable in Iran as he had attended numerous “meetings” [38].

v. At [39] “It may be objected I am attributing to him a rationality beyond his years. But given his apparent lifestyle producing and financing a record studio when he was 12 years of age, AIR Q147 I feel entitled to attribute to him a considerable degree of ratiocination and certainly more than the average young adolescent".

vi. The Judge found it contradictory that at AIR Q175 the appellant claimed he took part in a rap battle in 2013 whereas in his witness statement he claimed it happening 2014, a contradiction he put down to mistaken memory [43].

vii. The appellant claims in his witness statement to have been arrested for drinking alcohol, taken to court and ordered to pay a fine and attend four court sessions. In his asylum interview he claims he attended court with friends all who received the same sentence yet in his witness statement he describes being the only one picked out by the judge. This contradiction was pointed out to the appellant who attempted to explain the same at AIR 214-215, which the Judge finds does not address the contradiction and “is typical of the way the appellant gave evidence before me” [44].

viii. The appellant was unable to recall how long he attended the four meetings of the Revolutionary Court in relation to which the Judge states “Given that this was the first encounter with Iranian justice I am satisfied he would remember exactly how long he was in court and the fact that he cannot leads me to conclude his evidence is unreliable" [45].

ix. The Judge did not believe that no evidence of the appellant’s productions, songs or similar materials existed or, if they did, they were inaccessible to him. The Judge drew the conclusion the appellant is not and has never been a prolific rapper, never mind a political rapper, and that any rapping he has done is not subversive to the regime [47].

x. The Judge found himself fortified in arriving at the conclusion in [47] by the fact that in his asylum witness statement and asylum interview the appellant barely mentioned political issues [48].

xi. The appellant’s account of his journey from Iran to the UK is “so riddled with confusion and evasion that it significantly impacts, in my opinion upon his credibility generally” [50].

xii. The appellant was asked in cross-examination about his claim to have paid €6000 for train journey, as previously claimed, but claimed that he did not come by train. A further inconsistency in the evidence is outlined by the Judge at [55].

xiii. At [56] the Judge finds “what the appellant demonstrated in that exchange was an ability to obfuscate and evade questions. The whole account is implausible. €6000 to get out of Austria and another €1500 (SCR21) to get to France. The sums appeared by magic whenever they are needed as well as a Pakistani with access to his uncle’s bank account."

xiv. At [57] “I am satisfied that the appellant is a practiced deceiver who is incapable of telling the truth even when he has no need to tell detailed lies.”

xv. In relation to conversion to Christianity, the appellant was asked in his asylum interview how long ago it was before he left Iran that he went to his first house church meeting to which it is recorded he replied “I don’t know whether 1.5 or 2 years I can’t remember exactly when” which is a response the Judge was not satisfied with and who found that the appellant would know exactly when he first attended his first church meeting [58] similarly the Judge found that the appellant would know exactly when his last meeting was in Iran, especially as it forms part of his claim for asylum, although he claimed not to be able to remember [59].

xvi. At [61] “I am satisfied that the appellant has not established that he converted or began the process of conversion to Christianity or had any interest in Christianity prior to his arrival in the UK and that he did not attend house church meetings in Iran.”

xvii. The appellants claim in the asylum interview of 12 August 2015 that he last attended church two months ago as a result of psychological problem and that he is now a regular church goer and attended more than one church, was noted by the Judge, who also noted there was no evidence of psychological problems and his alleged closeness to his mother did not involve the appellant getting into contact with her or having a telephone number he provided to the respondent [64].

xviii. At [65] “I am satisfied that the appellant is telling lies. He was aware at the interview stage of the necessity to explain why he had not been to the church for two months and invented a fictitious account of psychological problems.”

ixx. The Judge noted the evidence from members of the Church and the evidence of a Mr Baillie that in his opinion the appellant is a genuine convert. The Judge finds “that opinion however is self-evidently based on what the appellant tells him and the appellant’s behaviour" [66].

xx. At [67] the Judge writes “In the light of my conclusions above as to the appellant’s character I am satisfied that he is not a genuine convert to Christianity. His conversion to Islam was, I find not, authentic and given the behaviour demonstrated throughout his claim I am satisfied his conversion in the UK is simply a ruse to advance his asylum claim.”

3. The Judge was not satisfied the appellant proved he was a political rapper and neither that he is a convert from Islam to Christianity. Accordingly, the Judge was satisfied it is safe to return the appellant to Iran.

Grounds and submissions

4. The appellant sought permission to appeal to the Upper Tribunal which was initially refused by another judge of the First-tier Tribunal but granted on a renewed application by Deputy Upper Tribunal Judge Taylor on 18 January 2017 in the following terms:

“Whilst many of the points made in the grounds amount to a disagreement with the decision, there is merit in the argument that the judge did not take into account the fact that when the appellant was interviewed he was a minor. The judge relied on inconsistencies in the dates given at interview, and it is arguable that he did not properly take into account the fact that the appellant was 17 at the time.

It is also arguable that the judge did not have regard to all the relevant evidence, in particular written evidence produced in support of the appellant’s Christian faith.”

5. On behalf of the appellant Mr Mohzam repeated the claim in the grounds seeking permission to appeal that the Judge failed to have regard to the appellant’s age and accordingly erred when considering what weight should be given to the appellant’s evidence. It was submitted that the ‘benefit of the doubt’ should have been given to the appellant based upon his age and maturity at the date of the asylum interview. In relation to the concerns regarding dates and ability to recall memories, it was submitted that the Judge should have considered the appellant was a minor and that in criticising the appellant’s responses the Judge failed to take age into account.
6. In relation to the findings concerning the appellant’s conversion to Christianity, Mr Mohzam asserted the Judge failed to consider the appellant’s responses against the background evidence, failed to factor the appellant’s age into the assessment of his evidence, failed to consider whether the appellant did attend church and whether he was interested in Christianity, failed to consider the basis of the evidence choosing instead to rely upon the periphery, did not look at the evidence in relation to the appellant’s knowledge of Christianity, refers to the fact the appellant stated he converted in the UK and was baptised on 27 July 2016, found the appellant was not a genuine Christian when the evidence from the witnesses that many seek to be baptised and the evidence from the church members was that they only baptise those they believe are genuine Christians. Mr Mohzam also asserted the Judge’s findings are not based on sound evidence and did not address the conversion, but rather focused on peripheral issues and do not deal with the core of the claim as to whether the appellant is a Christian or not and if so whether he would be at risk.

Error of law

7. There is no arguable legal error in the respondent undertaking asylum interview with a minor. Paragraph 352 of HC 395 as amended in September 2002 states that a child seeking asylum in his own right “may be interviewed about the substance of his claim”.
8. In relation to weight to be given to evidence provided by a minor, in R (on the application of AN a child and FA a child v Secretary of State for the Home Department [2012] EWCA Civ 1636 it was held that the Receptions Conditions Directive number 2003/9/EEC was directed at those who had actually made an application for asylum. The absence of a responsible adult at an initial or screening interview did not make the interview unlawful. It could not be said that answers given by a child in an initial interview without a responsible adult should not be relied on at all in evaluating an asylum claim. Such interviews were not unlawful and there was nothing in Statute rules guidance or European directives which prohibited reliance on such material. The judge on judicial review had been right to say that the influence of such answers should be regulated by weight in the particular case, rather than by any universal principle of admissibility. It might be right in an individual case to attribute no weight at all to the material that emerged: for example, a clear breach of the relevant principles would rule out reliance on the material obtained after the child had indicated that he was claiming asylum. Decision-makers would also have to be alert to the possible need to discard material when matters had not gone that far.
9. The issue is not the fact the Judge considered the evidence of the replies given by the appellant to questions asked at the asylum interview but to the weight the Judge chose to place upon such material. The Judge was aware of the appellant’s age and the date the asylum interview but there was no evidence of which the Judge was made aware that showed that the appellant suffered from any form of learning difficulties or psychological problems. The appellant was nearly an adult and had claimed as part of his own evidence to have been writing and selling songs, running a rap business and creating and producing CDs at a very young age. The Judge noted at [39] that the appellant had claimed to be functioning commercially when aged 12 leading to the Judge finding he was entitled to attribute a considerable degree of ability to process reasoned thought to the appellant. It was the appellant himself who claimed to have this ability and it has not been made out that the weight the Judge applied to the replies given by the appellant at interview is infected by arguable legal error.
10. It is also the case that a person age 17 is reasonably expected to know the difference between telling the truth and telling lies and there was no evidence to show that this appellant did not possess such awareness. Despite this the Judge records discrepancies arising from the evidence from other sources that gave rise to the concerns recorded in the decision. It has not been made out that the conclusions reached are outside the range of reasonable findings available to the Judge based on the evidence made available and referred to in the decision.
11. Whilst it is accepted that not all discrepancies warrant adverse credibility findings being made, in K(DRC) [2003] UKIAT 00014 the Tribunal said: “The case of Chiver is often relied on by appellants. It is of course perfectly correct that a story should not be rejected on the basis of minor discrepancies. A truthful witness may make mistakes because of nerves or forgetfulness or because of the experiences that have been suffered, for example. However, it does not follow that a witness who falters over what might appear to be peripheral matters is in all cases a witness of truth. A person who has made up his story may get the central elements right. An Adjudicator will have to use his common sense and experience to make his findings. He will need to consider whether an account which frays at the edges from time to time is nevertheless a truthful one or alternatively whether the witness has got himself into difficulties in unplanned departures from a pre-rehearsed and unreliable script”.
12. In relation to an Iranian Christian convert case, in SR (Iran) v SSHD [2007] EWCA Civ 460 the Tribunal found that the Appellant, who claimed to be at risk in Iran as a Christian, had lied about being married. The Tribunal went on to find that in view of the Appellant’s propensity to lie about past events her claim to have a well-founded belief that her relatives in Iran would not provide her with economic and social protection did not instil confidence. The Court of Appeal said that it was not improper for the Tribunal to regard the fact that the Appellant had been disbelieved about another event in her life as establishing her propensity to lie about past events and to cast doubt on her stated belief about how her relatives would react to her conversion.
13. The fact the Judge refers to discrepancies does not establish arguable legal error per se. In Fafschi (app JR IAT) 2006 CSOH 125 the Court of Sessions said that an adjudicator should not reject a claimant’s account because of a few discrepancies on unimportant matters where the discrepancies could be innocently explained. However, as part of a general assessment of credibility, an adjudicator could have regard to what he or she assessed to be incredible assertions of fact even though the assertions were not central to the claimant’s case. Similarly, where an adjudicator reached the conclusion that a claimant had failed to answer a question which should have been within his knowledge and was being evasive, it was of little significance that the matter on which he was being evasive was not central to his account.
14. In AK v SSHD [2006] EWCA Civ 1182 the Court of Appeal said that if an Immigration Judge found that a discrepancy was such as to call the appellant’s veracity into question, he would not normally be required to do more than say so. Often it will be obvious without explanation why a discrepancy does or does not have an impact on an appellant’s credibility. Where it is not obvious the judge will have to explain what would otherwise be a surprising conclusion. The more surprising it would appear to an objective reader why a discrepancy should or should not be regarded as significant, the more necessary it will be for an explanation to be provided.
15. In relation to the weight given to the evidence, it is an established principle that weight is a matter for the judge especially in a case where it is shown the judge considered the evidence with the required degree of anxious scrutiny and has given adequate reasons for the findings made, as is the case in relation to this decision.
16. In relation to the assertion the Judge should have given the appellant the ‘benefit of the doubt’, in KS (benefit of doubt) [2014] UKUT 00552 it was held that (i) in assessing the credibility of an asylum claim, the benefit of the doubt (“TBOD”), as discussed in paragraphs 203 and 204 of the 1979 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, is not to be regarded as a rule of law. It is a general guideline, expressed in the Handbook in defeasible and contingent terms; (ii) Although the Handbook confines TBOD to the end point of a credibility assessment (“After the applicant has made a genuine effort to substantiate his story”: paragraph 203), TBOD is not, in fact, so limited. Its potential to be used at earlier stages is not, however, to be understood as requiring TBOD to be given to each and every item of evidence, in isolation. What is involved is simply no more than an acceptance that in respect of every asserted fact when there is doubt, the lower standard entails that it should not be rejected and should rather continue to be kept in mind as a possibility at least until the end when the question of risk is posed in relation to the evidence in the round; (iii) Correctly viewed, therefore, TBOD adds nothing of substance to the lower standard of proof, which as construed by the Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, affords a “positive role for uncertainty”; (iv) the proposition in paragraph 219 of the Handbook, that when assessing the evidence of minors there may need to be a “liberal application of the benefit of the doubt” is also not to be regarded as a rule of law or, indeed, a statement of universal application. As a reminder about what the examiner should bear in mind at the end point of an assessment of credibility, the proposition adds nothing of substance to the lower standard of proof. If, for example, an applicant possesses the same maturity as an adult, it may not be appropriate to resort to a liberal application of TBOD; (v) Article 4(5) of the Qualification Directive is confined to setting out the conditions under which there will be no need for corroboration or “confirmation” of evidence. Although (unlike the Handbook) Article 4(5) does set out conditions that are rules of law, properly read, it is not to be compared with the scope of TBOD as described above.
17. No arguable legal error is made out in the Judges approach to the evidence on this basis.
18. The fact that individuals from the church came along and gave oral evidence in which they set out their own personal beliefs in relation to whether the appellant is a genuine convert to Christianity, is not the determinative factor. Credibility is a matter for the Judge who was required to assess all the available evidence from which appropriate findings of fact could be made and to consider the claim to face a real risk and to have an entitlement to international protection or on human rights grounds, in light of those findings.
19. The Judge also had the advantage of seeing the appellant give evidence and to hear the way in which replies to questions were given.
20. In relation to the claim to have converted to Christianity, the grounds are in part misguided. The Judge clearly considered the evidence and does not find that the appellant did not undertake the baptism referred to or had not attended church. The concern of the Judge in light of the other matters that arose in the evidence was that the appellant had not established that he was a genuine convert. The specific finding is that the conversion to Christianity in the UK simply a ruse to advance the appellant’s asylum claim.
21. This is an important finding for what it means is that there is no evidence the appellant has come to the adverse attention of the authorities in Iran as a result of his religious beliefs or that he is a person who will genuinely seek to practice his Christian faith, which may create a real risk on return, in Iran.
22. Mr Mohzam accepted that weight was a matter for the Judge and in light of this and the fact the appellant has failed to establish any irrationality or perversity in the findings made, it is the finding of this Tribunal that the appellant has failed to discharge the burden of proof upon him to show that the conclusions reached by the Judge were not within the range of those reasonably open to him on the evidence. Accordingly, it is found that no arguable legal error material to the decision to dismiss the appeal has been made out.

Decision

23. There is no material error of law in the First-tier Tribunal Judge’s decision. The determination shall stand.

Anonymity.

24. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 21 April 2017