Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02625/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21st November 2016
On 25th November 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

s s r
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms L Watton, instructed by Lamptons Solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Pakistan born on 8th October 1990. His appeal against the refusal of his protection claim was dismissed by First-tier Tribunal Judge Rastogi in a decision dated 14th September 2016.
2. Permission to appeal was sought on the ground that the evidence of the Appellant's witness Mr S, that he had attended gay nightclubs with the Appellant and his partner and had witnessed physical affection between them, was material relevant to the assessment of the Appellant's claim and the outcome of the appeal. The credibility findings in relation to the Appellant and other witnesses should have been assessed in the light of this corroborative evidence and the judge had failed to do so. If the evidence of Mr S did not affect the judge's assessment of the Appellant's credibility she had a duty to provide reasons for that. The judge failed to give reasons for why she could not attach any or any sufficient weight to the evidence of Mr S and her failure to give reasons was a material error of law.
3. The grounds rely on the case of AK (Failure to assess witness evidence) Turkey [2004] UKIAT 00230 in which it was held that a failure to make any assessment of credibility of witnesses was an error of law:
"10. In addition to his failure to summarise properly the evidence given by the five witnesses called on the Appellant's behalf, the adjudicator has also failed to make any assessment as to the credibility or otherwise of that evidence or to give any reason for arriving at his assessment. Save in those exceptional cases where the material facts are not in issue between the parties, it is an essential part of an adjudicator's responsibility to make clear findings of fact on the material issues, and to give proper, intelligible and adequate reasons for arriving at those findings. An adjudicator who fails to do so is liable to find that his determination is vulnerable to challenge on appeal at the sit of the losing party. That is the position here.
11. With respect to this experienced adjudicator, we are bound to say that his failure to make any findings of fact in relation to any of the five witnesses called on the Appellant's behalf was a serious error on his part. It is an error which, as Mr Buckley very properly recognised, is in itself sufficient to render the determination fatally flawed."
4. Permission to appeal was granted by First-tier Tribunal Judge Grant-Hutchison on 28th October 2016. She states:
"It is arguable that the judge has erred in law by failing to properly consider and give reasons for why she accepted or rejected the evidence of the Appellant's third witness Mr S who supported the Appellant's account that the Appellant attended gay nightclubs with him and he witnessed physical affection between the Appellant and his partner which may be material to the outcome."
Submissions
5. Ms Watton submitted that the only issue in this appeal was whether the Appellant was gay. The Respondent in the Rule 24 response had relied on the judge's findings at paragraphs 36 and 40, but this did not show that the judge had assessed the evidence of the witness, Mr S. The judge had made no credibility finding in relation to Mr S. This amounted to an error of law which was material to the outcome of the appeal.
6. The judge decided that the Appellant and his partner, Mr I, were not credible and this had infected the Appellant's credibility as a whole. However, the evidence of Mr S could have rescued it because it was corroborative of the relationship. The judge had failed to state in her decision why she placed no weight on the evidence of Mr S. If the witness had seen the Appellant and his partner hugging and kissing the judge had to assess why that was not credible. Following AK this amounted to a material error of law.
7. Mr Jarvis submitted that there was no material error. The judge was required to give reasons for settling disputes, but did not have to make findings on every single piece of evidence. The judge had approached this case very carefully. The core issue was whether the Appellant was in a relationship with his partner Mr I. The judge noted the evidence of Mr S at paragraph 23 where his evidence was summarised. The judge then went on to make a number of devastating findings against the Appellant which went to the heart of his case. She rejected his account in its entirety and this was not challenged in the grounds of appeal.
8. The judge recognised that the witnesses called by the Appellant could corroborate the Appellant's account and it was possible that the Appellant was gay, even if he was not in a relationship with Mr I. However, at paragraph 42 the judge did not accept the Appellant's evidence was reliable. The judge found that there was no other evidence to which she could attach sufficient weight to detract from this finding. The judge's approach was a proper one. It was difficult to see how the evidence of Mr S could lead to a finding that the Appellant was gay when the evidence of the Appellant, his partner Mr I and the other witness had been rejected by the judge.
9. The case of AK required the judge to be aware of the evidence and to give reasons for rejecting it. It was not a surprise in this case that evidence that the Appellant was kissing and hugging Mr I was not enough to undo the damage done to the Appellant's credibility in his own evidence.
10. In response, Ms Watton submitted that at paragraph 23 of the decision, where the judge summarised the evidence of Mr S, there was no mention of kissing and hugging. At paragraph 28 Ms Watton had made submissions that the witnesses were relevant to the key dates and the issues at hand. There was a requirement to assess the credibility of a witness and the judge had failed to make credibility findings in relation to Mr S or the other witness Mr Q.
Discussion and Conclusions
11. The grounds submit that Mr S gave the following evidence. In his witness statement he gave details of attending gay nightclubs with the Appellant and in cross-examination, when asked how he knew the Appellant and Mr I were in a relationship he gave details of the contact he had had with the two of them and noted that this could not be friendly contact because he had seen them kissing and hugging. At the end of Mr S's evidence the judge asked him to repeat this question because she did not hear the answer. The grounds submit that the oral evidence has not been taken into account in the judge's credibility findings at paragraphs 29 to 42.
12. In submissions before the First-tier Tribunal Ms Watton invited the judge to find that the Appellant and his partner had been consistent as to the key dates and events. In submissions before me, she submitted that Mr S could assist and corroborate this evidence.
13. In his witness statement Mr S stated that he met the Appellant in the Shadow Lounge Club on 11th November 2015 and he had met the Appellant's partner, Mr I, on numerous occasions.
14. The note on the court file of Mr S's oral evidence was that he did not know when the Appellant's relationship with Mr I started because he did not discuss the past. He knew that they were in a relationship and had seen them together. He was asked if they could just be friends but he said no, he had seen them kissing and hugging and friends did not do that. He was not in any of the photographs because he did not want to be.
15. The judge summarised the evidence of each witness and summarised the submissions. In relation to Mr S she stated:
"23. The witness, Mr S, explained that he met the Appellant in a gay bar in November 2015 and the Appellant introduced Mr I as his partner. They have been friends since then."
16. The judge set out her findings in relation to the credibility of the Appellant and Mr I at paragraphs 29 to 42. She found that there were differences in the evidence given by the Appellant and his partner as to the start of their relationship, which were significant. She made the following findings:
"34. I find the significant difference in the accounts given by the appellant and Mr I on these key aspects of their claimed romantic relationship to be very damaging to both of their credibility. The beginning of a gay relationship between two people who had not long met, both of Pakistani origin, is a very significant event, especially in light of the way such a matter is treated in Pakistan. I do not accept that the detail of that, having taken place less than two years ago, would easily be forgotten or misremembered.
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36. The appellant's witnesses appeared to corroborate the appellant's claim to be gay and that he and Mr I are in a relationship. However, the appellant's evidence that Mr I had introduced him to Mr Q as his partner on visiting the showroom in February 2015 was inconsistent with Mr Q's evidence that he did not know they were in a relationship till he dined at their house in October 2015."
17. The judge then went on to consider other evidence and the documentary evidence and concluded at paragraphs 41 and 42:
"41. Considering all the evidence in the round, having regard to the damage done to the appellant's and Mr I's credibility, applying the lower standard of proof, the appellant has failed to satisfy me that he and Mr I are in a romantic relationship.
42. It is of course possible that the appellant may nevertheless be gay even if not in a relationship with Mr I. However, the damage done to his and Mr I's credibility infects the rest of the appellant's evidence in such a way that I am unable to accept it as being reliable. I have not identified any other evidence to which I can attach sufficient weight to overcome this damage. It follows that even to the lower standard, the appellant has failed to satisfy me that he is gay."
18. The judge assessed the evidence of the Appellant and his partner, Mr I, and concluded that the significant discrepancies damaged their credibility. She gave cogent reasons for coming to that conclusion. She then assessed the other evidence and whether that was capable of supporting their account. She noted an inconsistency in the evidence of Mr Q, but made no reference to any inconsistencies in the evidence of Mr S. She found at paragraph 36 that the Appellant's witnesses appeared to corroborate the Appellant's claim to be gay. It was quite clear that she has accepted that there was evidence which was capable of supporting the existence of a relationship.
19. However, the judge found that the significant discrepancies between the Appellant and his partner, Mr I, were such that she was unable to identify any other evidence to which she could attach sufficient weight to overcome this damage. In other words, even though Mr S had seen the Appellant and Mr I hugging and kissing this was insufficient to show that they were in a relationship because of the significant discrepancies about that relationship in the accounts of the Appellant and Mr I.
20. Ms Watton submits that the judge failed to specifically deal with the credibility of Mr S and failed to state reasons why she attached little weight to his evidence. Even if that were the case, it was not material to the decision. This was not a case that was similar to AK because in this case the judge clearly noted the evidence of Mr S, found his evidence to be capable of corroborating the Appellant's account, but then concluded that she was unable to attach sufficient weight to it.
21. In the case of AK the judge failed to deal with any of the five witnesses. In this case the judge dealt with the two main witnesses in great detail. She commented on Mr Q's evidence and she quite clearly found that Mr S had given corroborative evidence. However, she found that she could not attach sufficient weight to it to overcome the significant differences in the accounts of the Appellant and his partner.
22. I accept that the judge failed to note in her summary of the evidence of Mr S that he had seen the Appellant hugging and kissing Mr I, but it was evident from the Record of Proceedings that he had said that. Any lack of reasoning for why the judge attached little weight to Mr S's evidence was not material because the judge did not find the Appellant to be a witness of truth and his evidence was not something that could be relied on. The evidence of Mr S in itself was insufficient to show that the Appellant was in a relationship with Mr I or indeed that he was gay as he claimed. The evidence of Mr S was insufficient to overcome the credibility issues that the judge identified in relation to the Appellant's claimed relationship with Mr I.
23. Accordingly, I find that the judge has not made a material error of law in failing to make findings as to the credibility of Mr S. She quite clearly took his evidence into account, but found that it could not overcome the credibility issues raised by the Appellant. There was no error of law in the judge's decision dated 14th September 2016 and I dismiss the Appellant's appeal.

Notice of Decision
The Appellant's appeal is dismissed.
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 her or any member of her 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.

J Frances
Signed Date: 24th November 2016

Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

J Frances
Signed Date: 24th November 2016

Upper Tribunal Judge Frances