Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02858/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decisions & Reasons Promulgated
on 2 November 2016
on 7 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

KAYWAN MOLANI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr D Katani, instructed by Katani & Co, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge Boyd, dismissing his appeal against refusal of asylum as a refugee from Iran.
2. The substantive points raised by the appellant begin at paragraph 2 of the grounds on which he was granted permission. At paragraph 18 of his decision, the judge was "not prepared to draw an adverse inference" from the appellant being asked to pay tax from his smuggling activities to the PKK, when he was prepared to take risks on their behalf. The grounds say that the judge failed to take the appellant's explanation into account, and should have found this to be a point which enhanced his credibility. In submissions, Mr Katani said that the judge was bound to give the benefit of the doubt, and to take this point to the appellant's credit.
3. Paragraph 3 of the grounds criticises paragraph 19 the decision, where the judge found it not credible the appellant would recall only one date out of three in relation to delivering leaflets over a two-month period. The ground argues that this failed to take account of the appellant's explanation, or alternatively the judge was bound to give "reasons for placing little to no weight on a piece of evidence that enhances the appellant's credibility". Mr Katani submitted that there were no reasons for rejecting the appellant's account, and this matter could only have been held to enhance his case.
4. At paragraph 20 the judge agreed with the respondent's point that it was unlikely that no one from the appellant's home would have been arrested if the authorities had found PKK papers and leaflets there. Paragraph 4 of the grounds says that this is speculative, and refers to country guidance which in turn cites UNHCR information that family members may be detained or punished, but that there is no basis in Iranian law to detain a family member of a person whom the authorities have failed to arrest. Mr Katani submitted that there was no evidence before the judge that family members would be apprehended, and the judge had failed to note what was in the information quoted in country guidance.
5. The appellant's explanation for no one being arrested during the raid was that his parents were unwell. At paragraph 25, the judge rejected that explanation, because it was not mentioned previously. Paragraph 5 of the grounds says that this did not previously emerge simply because the appellant was not asked. The judge had no way of knowing this would become a contentious issue, and the judge's findings were "irrational and perverse". Mr Katani's submission was along the same lines.
6. Grounds 6 and 7 were taken together. At paragraph 21 the judge found it adverse that the appellant said the PKK sought to act peacefully, apart from defending themselves, when background evidence was that they have been in an armed struggle against the Turkish government since 1984. The appellant's knowledge was also thought to be vague. Mr Katani submitted that there was no real inconsistency between having peaceful aims and being forced into armed struggle, and that the appellant had not claim to be more than a supporter of the PKK. He said the respondent and the judge failed to understand the mind-set which applied in another country, and the emotional attraction of the PKK, although a Turkish organisation, to Iranian Kurds. In effect, he said, the judge had applied too high a threshold of proof.
7. Paragraph 8 of the grounds says that the judge erred by failing to take into account objective evidence, namely a report on the serious consequences if the Iranian regime catches a sympathiser in an activity against the government. Mr Katani submitted that this reinforced paragraphs 6 and 7 of the grounds.
8. Paragraph 9 of the grounds turns to a different issue. The appellant claimed to have converted in the UK to Christianity. The judge found at paragraph 28 that his asylum claim having been refused on 5 November 2015, it was no coincidence that he commenced attending church on 11 November 2015. The ground says that there was no evidence before the judge that the appellant was aware of the adverse decision before 11 November 2015, and the judge fell into speculation.
9. Ground 10 relates to paragraph 12 of the decision, where the judge noted evidence of the appellant's regular attendance at church on Tuesdays and Sundays, and to paragraphs 28 and 32, where he said only that the appellant attended some Tuesday and Sunday sessions, and that frequency had not been established. These errors led to positive factors being overlooked, which should have weighed in the appellant's favour.
10. Submitting on grounds 9 and 10 together, Mr Katani said that judge's conclusions on the claimed Christian conversion could not be sustained.
11. Finally, Mr Katani submitted that the cumulative errors were such that a fresh hearing in the first-tier tribunal was required.
12. Mrs O'Brien submitted as follows. The judge at paragraph 18 gave no weight to the issue about tax paid to the PKK. There was no logical reason for the matter to be placed in the appellant's favour. As to dates, these were highly risky alleged activities. It was open to the judge to consider that the appellant should have had more accurate and specific recollection. The appellant quoted country guidance and background evidence in an attempt to undermine the judge's finding at paragraph 20, but in fact that evidence supported the finding. His conclusion that it was unlikely there would be no interest in family members was consistent with the contextual evidence. The findings about the appellant in relation to the PKK were all sensible. It is not an Iranian but a Turkish organisation. The appellant's evidence was vague, and at some points wrong. The PKK did not use peaceful means. The appellant lived not in Turkey but in Iran and had no knowledge of the Iranian organisation PJAK, as would have been more likely. His lack of knowledge did not fit with the alleged risks taken on behalf of the PKK. The appellant said he had not been asked to explain why no one was arrested when his home was raided, but he was not restricted from adding information. In any event, any error in that part of the reasoning was not material, given the reasoning on this point in earlier paragraphs. The analysis at paragraphs 16 to 24, read fairly and as a whole, was legally sufficient.
13. Turning to the Christian conversion claim, Mrs O'Brien said that the judge was entitled to conclude that the appellant knew about the rejection of his asylum claim before he began to develop his interest in Christianity. The decision was dated 5 November 2015 and had been served by post. The appellant had seen a solicitor and placed grounds of appeal before the first-tier tribunal by 18th November. It was a common-sense deduction that he knew about his rejection of his claim before he began going to church on 11th November. The judge may have gone slightly wrong about the regularity of attendance at church on Tuesdays, but it was clear he would not have decided any differently, even if the appellant had established that he went to church every Tuesday and every Sunday.
14. In response, Mr Katani said that there was nothing unusual about being unable to be specific about dates. The appellant had reason to recall one particular date, but not others. When the appellant's family home was raided, PKK materials were found, but it was not surprising that no one was arrested, since the reason for the authorities to go there was that the appellant's anti-authority activities had become known. There was no reason for an interest in anyone else. The appellant had explained that became involved with the PKK rather than PJAK, and the refusal letter accepted that the organisations are closely connected. The appellant's position was that PJAK is simply a part of the PKK, so his account is exactly as was to be expected. There was no reason for the appellant to take the initiative in offering explanations of why none of his family members were arrested, and the point had never been put to him. There was no reason to think the appellant knew about the asylum decision by the time he first went to church.
15. I reserved my decision.
16. There is no reason why those points which the judge treated as neutral should have been found to go in the appellant's favour.
17. The information cited in the grounds does not go against the judge's finding that if the account were true, it was likely family members might have been detained. The information tends to support the judge's conclusion.
18. The appellant's account of the PKK was vague, and it was inaccurate. The judge did not error by taking these points against the appellant.
19. There is no reason to think that the judge was not well aware that the Iranian regime does take stern action and indeed often persecutes its opponents, even at a low level. This is simply part of the commonly known background.
20. The inference that the appellant knew about refusal of his asylum claim before he began going to church, given the dates, and the usual time documents take in the post, is not speculative but obvious.
21. The grounds do identify that the evidence suggested slightly more regular attendance at church than the judge stated in his concluding paragraphs; but the difference is very minor. It is not a misconception of a nature which might have changed the judge's mind.
22. Both point by point and as a whole, the grounds and submissions are a dogged attempt to re-argue the case for the appellant, but they are no more. They disagree on the facts, but they do not disclose legal error.
23. The determination of the First-tier Tribunal shall stand.
24. No anonymity direction has been requested or made.

4 November 2016
Upper Tribunal Judge Macleman