Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02676/2015 & PA/03581/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
on 17 January 2017
on 24 January 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

C Z & J G
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr K Katani, of Katani & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellants appeal against a determination by First-tier Tribunal Judge McGavin, promulgated on 2 November 2016.
2. The grounds of appeal, in summary, are as follows.
Ground 1. At paragraph 20 the judge said it had not been explained why the evidence of the 1st appellant about his involvement with the organisation Free Tibet was materially different after refusal of his claim, and that there had been no evidence "other than his own assertion and that of his co-appellant" that he had attended demonstrations or was an active member. This overlooked evidence in the form of photographs showing both appellants taking part in a demonstration; overlooked evidence dated 8 December 2015 of their membership of Free Tibet; and erroneously imposed a requirement of corroboration.
Ground 2. At paragraph 21 the judge noted the 2nd appellants' claims of attending protests, distributing leaflets and attending talks, and said that if she been involved to the extent of distributing leaflets it was reasonable to suppose that someone else in the organisation would have been responsible for giving her leaflets and might have given evidence. This was another error of seeking corroboration where then there is no such onus.
Ground 3. At paragraph 24 the judge said there was no evidence of the appellants' renewing their subscriptions to Free Tibet, which overlooks the evidence dated 8 December 2015.
Ground 4. At paragraph 25 the judge said that there was no evidence from Feng Zhang, who was said to have introduced the appellants to Free Tibet, and that it was not explained why he could not have given a statement to the appellant's solicitors following refusal of the claims and prior to December 2015 [when he left the UK for China]. As Feng Zhan had been detained on return to China, this should not have been used to make a negative finding.
Ground 5. At paragraph 31 the judge said that neither appellant was in a position to explain how the Chinese police might identify them from photographs [taken at demonstrations in the UK] or ascertain the addresses of their parents. It was not for the appellants to explain the workings of the Chinese police force. The judge used an immaterial matter to make an adverse credibility finding.
3. In a written response to the grant of permission the respondent said that at paragraph 22 the photographs were taken into account; that a judge is entitled to draw adverse inferences from absence of evidence which ought to be available; and that ground 5 missed the point that there is no background evidence that the Chinese authorities have any interest in or method of identifying protesters in the UK.
4. Mr Matthews helpfully acknowledged at the outset that the evidence of renewal of membership had been overlooked.
5. Mr Katani submitted along the lines of the grounds, and as follows. The judge overlooked 3 significant items - the photographs; the renewal of membership; and the statement of the 1st appellant. It was accepted that there is some case law to the effect that judges may comment on absence of evidence which appellants might have produced, but there was a limit on what was to be expected. In this case the judge gone much too far and ignored the principles of Kasolo. The case should be remitted to the FtT.
6. Mr Matthews submitted along the following lines. At paragraph 20, the subject of ground 1, the judge's principal point was that the 1st appellant changed his evidence. The ground did not challenge the identification of inconsistency. The photographs did nothing to undermine that finding, and nor did renewal of membership on 8 December 2015. This ground missed the point. The theme of incorrectly requiring corroboration running through the grounds was ill-founded. There is no legal requirement of corroboration, but there is an obligation on appellants to substantiate their claims as far as they reasonably can. There was nothing wrong in the judge's observation that if the appellants had been as active in Free Tibet as they claimed, there might have been some better evidence from the organisation than mere renewal of membership. The evidence overlooked showed a minor slip of fact, but not amounting to error of law requiring the decision to be set aside. The judge for multiple reasons would plainly have come to the same conclusion. Ground 4 showed no lack of logic. Feng Zhang, if he existed, could have made a statement before returning to China. If he was detained after returning, that made no difference. Ground 5 also missed the point, as pointed out in the written response. The judge's observation was that there was no objective evidence of such activities by the Chinese police. She did not expect the appellants to be experts on police procedure.
7. Mr Katani in response said that the judge must have thought it significant that there was no evidence of renewal of membership, or the matter would not have been mentioned. It could therefore not be known what the judge might have made of the case, absent that issue. The judge should not have expected the appellants to corroborate their case, which amounted to pure speculation as to what evidence might exist. On ground 5, the judge expected the appellants to see into the minds of the authorities.
8. I reserved my decision.
9. The criticism of "requiring corroboration" is regularly advanced in this jurisdiction as an alleged error of law, but it is seldom if ever shown that judges do fall into a misconception in that category.
10. The obligation on appellants to substantiate their cases is to be found in many sources, including the UNHCR Handbook, the Immigration Rules, and case law.
11. This is article 4 of the Qualification Directive, 2004/83/EC (transposed into the rules at paragraph 339L):

Assessment of facts and circumstances

1. Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application.

2. The elements referred to in of paragraph 1 consist of the applicant's statements and all documentation at the applicant's disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.

3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:

(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied;

(b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;

(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;

(d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country;

(e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.

4. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

5. Where Member States apply the principle according to which it is the duty of the applicant to substantiate the application for international protection and where aspects of the applicant's statements are not supported by documentary or other evidence, those aspects shall not need confirmation, when the following conditions are met:

(a) the applicant has made a genuine effort to substantiate his application;

(b) all relevant elements, at the applicant's disposal, have been submitted, and a satisfactory explanation regarding any lack of other relevant elements has been given;

(c) the applicant's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant's case;

(d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so; and

(e) the general credibility of the applicant has been established.
12. The following is excerpted from TK (Burundi) v SSHD [2009] EWCA Civ 40:
[16] Where evidence to support an account given by a party is or should readily be available, a Judge is, in my view, plainly entitled to take into account the failure to provide that evidence and any explanations for that failure. This may be a factor of considerable weight in relation to credibility where there are doubts about the credibility of a party for other reasons.
[21] The circumstances of this case in my view demonstrate that independent supporting evidence which is available from persons subject to this jurisdiction be provided wherever possible and the need for an Immigration Judge to adopt a cautious approach to the evidence of an appellant where independent supporting evidence, as it was in this case, is readily available within this jurisdiction, but not provided. It follows that where a Judge in assessing credibility relies on the fact that there is no independent supporting evidence where there should be supporting evidence and there is no credible account for its absence commits no error of law when he relies on that fact for rejecting the account of an appellant.
13. The judge in this case found that the appellants had not done all they might have done to substantiate their claims, if they were true. She made no error of law by relying, as far as she did, on absence of evidence. That accounts for most of the grounds.
14. The submission that paragraph 20 of the decision is based on inconsistency was well taken. No error has been alleged in identifying that inconsistency.
15. Ground 3 is based on a misinterpretation. The detention of Feng Zhang in China, if it happened, had nothing to do with the judge's point that he might have made a statement before he went there.
16. Ground 5 is also based on a misconception. The judge did not expect the appellants of their own knowledge to explain the workings of the Chinese authorities. The underlying point was the absence of evidence that Chinese authorities scrutinise demonstrators in the UK or, having identified them, make that known to their families in China.
17. The proposition is particularly unlikely at the minor level of activity claimed by these appellants.
18. The best point found for the appellants is that the judge overlooked the renewal of their memberships of Free Tibet, and that she must have thought non-renewal of some significance, or she would not have mentioned it.
19. The significance which attaches to a slip of this nature is a question of fact and degree.
20. Reading the decision fairly and as a whole, it contains numerous good reasons for rejecting the appellant's account, and apart from this, no error of fact or of law has been made out. The slip is a minor one. It realistically makes no difference. It may safely be said that upon its excision the judge must have come to the same conclusion.
21. The determination of the First-tier Tribunal shall stand.
22. No anonymity direction has been requested or made.

23 January 2017
Upper Tribunal Judge Macleman