Tribunal decisions

The decision

IAC-AH-SAR-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02875/2016

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 17th January 2017
On 1st February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr MOHAMMED [H]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Howard, Solicitor
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Ethiopia born on 23rd February 1989. The Appellant claims to have left Ethiopia on 17th May 2015 and travelled via Sudan and France before entering the UK illegally on 3rd September 2015 where he claimed asylum. The Appellant's claim for asylum is based on a fear that if returned to Ethiopia he would face mistreatment due to his support of the organisation known as Ginbot 7. The Appellant's application for asylum was refused by the Secretary of State by Notice of Refusal dated 8th March 2016.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Hussain sitting at Birmingham on 29th September 2016. In a decision and reasons promulgated on 12th October 2016 the Appellant's appeal was refused on asylum and human rights grounds and the Appellant was found not to be in need of humanitarian protection.
3. On 15th October 2016 the Appellant's legal representatives lodged Grounds of Appeal to the Upper Tribunal. Those grounds contend:-
The judge failed to apply the correct standard of proof.
The judge, when considering the Appellant's sur place activities, failed to apply country guidance.
That the judge erred in his consideration of Article 8 of the ECHR/paragraph 276ADE of the Immigration Rules.
That the judge failed to assess the persecutory risk that the Appellant faced on return to Ethiopia as a failed asylum seeker.
That the judge made unreasonable findings by finding at paragraph 7 of the determination that it was reasonable to expect the Appellant to have produced some memorabilia regarding his father's political involvement in Ethiopia and that paragraph 8 of the Appellant's account was not credible on the basis that he had not provided such supporting evidence regarding his father's activities.
That the judge had given inadequate reasons at paragraphs 10 to 13 of his decision for not accepting the Appellant's account of what happened to him in Ethiopia.
4. On 14th November 2016 First-tier Tribunal Judge Adio granted permission to appeal. In granting permission Judge Adio concentrated on two of the Grounds of Appeal, firstly that the judge used the higher standard of proof in his deliberation in considering the Appellant's credibility at paragraph 12 of the decision, and secondly that the judge did not engage with the background evidence when dealing with the sur place activities.
5. On 30th November 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. Therein it submits that the use of the term "improbable" did not indicate the fact that the Appellant was subject to a higher standard of proof in the making of this determination. The Rule 24 response goes on to contend that in relation to the Appellant's grounds commenting on sur place activities, it is submitted that the judge had adequately reasoned his findings at paragraph 18 where it had been found that the evidence of any sur place activities would not place the Appellant at risk.
6. It is on this basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed solicitor Mr Howard. The Secretary of State appears by her Home Office Presenting Officer Mr McVeety.
Submissions/Discussions
7. Mr Howard takes me to the Grounds of Appeal. His main thrust, he emphasises, is on a contention that the judge failed to apply the correct standard of proof, failed to apply country guidance when considering the Appellant's sur place activities, and made unreasonable findings in his conclusions. His starting point is paragraph 12 of the decision. It is relevant to record the sentence that causes the Appellant's legal representatives the greatest concern:-
"It is improbable that a person having escaped from police custody would go to as public a place as a university if he had escaped from the police especially if, as he says, he had been recognised".
The underlining of the word improbable is my own. It is however the use of that word that Mr Howard hangs his hat upon. By using improbable he contends that the wrong standard of proof, i.e. the balance of probabilities, has inadvertently been applied by the judge.
8. Mr Howard then addresses the sur place activities which are referred to at paragraphs 17 and 18 of the judge's decision. He notes that at paragraph 18 the judge appears to accept that the Appellant has been involved in sur place activities in that he has been photographed taking part in demonstrations and that the Appellant has published photographs of his involvement at the demonstrations on his own Facebook account. Having made such an acceptance he states that the judge then fails to go on to consider the Appellant's risk on return as a consequence of such involvement. He refers to the objective evidence, in particular the Operational Guidance Note on Ethiopia at paragraph 3.16.21:-
"Conclusions: individuals perceived to be active or influential in opposition to the Ethiopian state are at risk of ill-treatment, including persecution by the Ethiopian authorities"
and he also relies on the US Department of State Country Report on Human Rights Practices Ethiopia 2015 where it was found:-
"In addition to its domestic activities, the government used FinSpy to monitor the online activities of Ethiopians living abroad".
9. Mr Howard then turns to what he contends are unreasonable findings made by the judge and asks me to consider paragraphs 7 and 8 of the judge's decision. He notes at paragraph 7 the judge contends it was reasonable to expect the Appellant to have produced some memorabilia regarding his father's political involvement in Ethiopia. He contends that that was an unreasonable finding and that the judge did not give any consideration to the risk or danger that it would place the Appellant's family in Ethiopia if evidence of an anti-Ethiopian authority activity was sent through the post, bearing in mind that there is objective evidence that points to state monitoring. Further he contends that it is unreasonable for the judge to have found at paragraph 8 of his decision that the Appellant's account was not credible on the basis that the Appellant did not provide such supporting evidence regarding his father's activities. Mr Howard asks me to find there are material errors of law, to set aside the decision and to remit the matter back to the First-tier Tribunal for re-hearing.
10. In response Mr McVeety, whilst acknowledging that the use of the word improbable is unfortunate, points out that the judge has, at paragraph 5, set out the fact that the lower standard of proof applies and relies on the point made in the Rule 24 that the use of the term improbable does not indicate the fact that the Appellant was subject to a higher standard of proof in the making of this determination.
11. So far as the Appellant's sur place activities are concerned, Mr McVeety points out that the judge at paragraphs 17 and 18 was not satisfied that the activities undertaken by the Appellant created a risk of persecution for him on return, despite the fact that he accepted what the Appellant had been doing. Further he points out there is no objective evidence that has been produced to show that the Appellant's activities were monitored.
12. Turning to the issue of the corroborative evidence mentioned at paragraphs 7 and 8 of the decision and the failure to produce it, he points out that the Appellant has confirmed that he has been in touch with his mother and that it is reasonable in such circumstances for corroborative evidence to have been provided. He submits that the judge has just about done enough, bearing in mind the reasons given why the judge queries the corroborative evidence. Overall he asks me to find no material errors of law and to dismiss the appeal.
The Law
13. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
14. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
15. It is clear that the judge has set out at paragraph 5 what I anticipate is a standard paragraph used setting out the lower standard of proof. This of course is not in itself sufficient to show that a judge has applied that standard of proof. The judge goes on to consider in some detail the Appellant's version of events. It is however unfortunate that he uses the word improbable. I understand from the submissions made that use of the word "unlikely" would create exactly the same difficulty. I can well imagine that the judge when dictating his decision and making use of the word improbable probably did not in any shape or form believe that in doing so he was potentially applying the wrong burden of proof but when looked at objectively the statement does imply a balance of probabilities test merely by use of the word rather than a lower burden of proof. As the use of the word goes to findings of credibility, there is an error of law. The question therefore remains is it material particularly bearing in mind the other findings made by the judge? I am satisfied that in this case the findings have to be looked at in the round and therefore such a finding could taint the judge's credibility assessment and, as such, there is a material error of law.
16. I am also persuaded that bearing in mind the findings that the judge accepts the Appellant has been involved in sur place activities, it is necessary for him as a matter of law to go on to consider the persecutory risk that the Appellant would face on return as a consequence of such involvement and to consider the objective evidence. Such objective evidence has not been considered. That in itself again constitutes an error of law which in this instant case I find to be material.
17. Finally I give due consideration to the position regarding the analysis of the corroborative evidence. The judge has quite properly started by reciting the authority or TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40. To a certain extent the submissions made by Mr Howard in this aspect amount to little more than disagreement in that the judge made his analysis having given due consideration to the guidance given in TK (Burundi). However, in view of the other findings and the fact that this matter has to be re-heard, I agree with the submissions made that it is appropriate that these particular findings are not preserved and that the issue is reconsidered in the light of all the evidence bearing in mind the judge has failed to consider the risk/danger that the Appellant's family in Ethiopia may be placed in sending such evidence through the post when the evidence points to there being state monitoring within Ethiopia. To such an extent there is a material error of law.
Notice of Decision
18. The decision of the First-tier Tribunal contains material errors of law and is set aside. Directions are given below for the re-hearing of this matter.
Directions
(1) On the finding that there is a material error of law the decision of the First-tier Tribunal is set aside.
(2) The matter is remitted to the First-tier Tribunal sitting at such centre as the administration considers appropriate on the first available date 28 days hence with an ELH of three hours.
(3) None of the findings of fact are to stand.
(4) That the re-hearing is to be before any Immigration Judge other than Immigration Judge Hussain.
(5) That there be leave to either party to file/serve an up-to-date bundle of subjective and/or objective evidence upon which they seek to rely at least seven days prior to any restored hearing.
(6) That an Amharic interpreter do attend the restored hearing.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris