Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02923/2016

THE IMMIGRATION ACTS

Heard at Field House
Decisions and Reasons Promulgated
On 10th November 2016
On 22nd November 2016

Before

UPPER TRIBUNAL JUDGE COKER

Between

A W
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Saleem of Malik and Malik, solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant was granted permission to appeal on the grounds that it was arguable that the First-tier Tribunal judge had failed to take account of material evidence including background material and evidence relating specifically to the appellant and found there to be discrepancies when there were none. It was also arguable that the judge had failed to consider whether the respondent was under a duty to verify documents that had been produced by the appellant.
2. The applicant claimed, and it was accepted by the respondent, that he had completed military school in Kabul in 1978, studied Pashtu at Kabul University, graduating in 1982. He then commenced employment as senior lecturer in Pashtu at the Military University in Kabul where he was employed as a lecturer for 10 years from 1982 until 1992. Between 1992 and 2003 he was unemployed but continued to live in Kabul with his family. He recommenced work as a lecturer at the National Military Academy in 2003, subsequently renamed to National Military Academy and then renamed as Marshal Fahim National Defence University and remained in that post until 2013.
3. The respondent did not accept the appellant's claim that in 2013 he changed his job due to health problems and became the Manager of Establishment and Supervision of Girl's Schools in Afghanistan. Nor did the respondent accept that the appellant had become a target of the Taliban and was thus at risk.
4. The First-tier Tribunal Judge Hodgkinson heard evidence from the appellant and concluded that the only element of the appellant's account that he accepted as credible was that which was also accepted by the respondent. In finding the appellant's account not credible, the judge referred to what he described as material discrepancies and major credibility issues:
that he had said he left his job when he left the country on 3rd March 2015 whereas an email from a person who "purported" to be a Senior advisor to the Minister of Education said the appellant was working with the Ministry of Education from 4th November until February 2015;
in his witness statement he referred to "we" meaning him and his son heard the Taliban threats whereas in his interview he referred to his son hearing the Taliban threats;
that it was not credible that the Taliban would give him a month to leave his job (by letter) given the earlier threat to kill him;
that having left his job he would still be at risk because he would have been more valuable to the Taliban if he had continued in his job;
that he claimed both that the Taliban wanted to kill him and that they wanted to take him away; such assertions being inconsistent with each other;
Although he has an identity card which is consistent with his claim to be employed by the Ministry of Education, in the light of the other discrepancies it was unreliable.
5. The First-tier Tribunal judge had, in the bundle of documents before him, evidence of the role and employment of the person who confirmed the appellant's employment with the Ministry of Education, such evidence being taken from the Ministry's website. The judge failed to consider the contact list provided, the job description provided and the independent corroboration this provided of the seniority of the writer of the letter.
6. The judge also had evidence before him of the injuries sustained by the appellant's son, which corroborated the claimed attack; documentary evidence from the police; documentary evidence of his employment. Yet although the judge refers repeatedly to having taken all the documents into account he either overlooked these documents or had already determined that they would not alter the conclusion he was intending to draw.
7. The judge identified a discrepancy which did not exist namely whether it was only his son who heard the threat or whether they both heard the threat. To place such weight upon what is at best a minor discrepancy if it exists at all, to take into account a word said by the appellant that was not said is perverse. Furthermore, the judge failed to take any account of the hospital records or the account as a whole in reaching an adverse conclusion. Overall this renders the identification of this as a discrepancy, perverse.
8. Overall the judge has failed to take full account of the background material on the Taliban and, most importantly, failed to give proper and due attention to the documentary evidence which was produced and was corroborative of the appellant's account. The attempt to magnify small possible discrepancies renders the decision of the judge perverse and irrational.
9. I set aside the decision to be remade.
10. Both parties were agreeable to my remaking the decision on the same day. On behalf of the appellant, Mr Saleem submitted an email from Mr Siddiqui which confirmed that human resources had confirmed that he was paid until the end of February but per attendance he had last attended on 2nd March 2015. Mr Walker did not require time to take instructions and did not seek an adjournment. He was satisfied that the email details were the same as appear on the website and on the other documentary evidence produced confirming that Mr Siddiqui was Senior Advisor to the Minister of Education in Parliamentary Affairs, as claimed by the appellant.
11. Mr Walker confirmed that he had no questions he wished to put to the appellant. He relied upon the respondent's reasons for refusal letter and submitted the appeal should be dismissed.
12. The evidence in support of the appellant's contention that he had been employed by the Ministry of Education in the post of Manager of Establishment and supervision of Schools for Girls includes:
Correspondence from the Senior Advisor to the Minister of Education;
Contract of employment;
Letter from the Minister of Education
Letter confirming his duties;
An appreciation letter from the Ministry of Education
ID card.
13. In so far as the incident in the market where the appellant claimed that the Taliban had threatened him and his son, I am satisfied that there are no significant discrepancies in the accounts given by the appellant. The appellant, although he had resigned from his earlier post because of back pain from standing for long periods of the day, was not incapacitated to the extent assumed by the respondent in the reasons for refusal letter. The reaction of the appellant to run and cross what was a small river was credible when considered in the context of the market and the hospital records produced of the injuries to his son and the police record. That there were small insignificant differences in the recording of an account does not adversely the credibility of the appellant's account of that incident.
14. The appellant has been employed in high profile work since 1982, other than his period of unemployment. He has been based in Kabul. His job prior to leaving the country was to establish schools for girls and he travelled through four provinces to undertake this work. He has been commended for his work and the police have confirmed they are unable to provide him with protection. Although he had ceased to undertake the work around girl's schools he clearly remains high profile. That he was told to resign and did so is not a matter that would result in him no longer being at risk. The work he was doing ceased and therefore to that extent the Taliban have achieved what they wished for but he remains a person who had been undertaking work which was contrary to the Taliban ethos. The background material makes plain that it is not merely a question of punishing individuals but fear is to be instilled in those who might consider it appropriate to conduct themselves in particular ways in the future. As a person who had previously held high profile employment (not only in terms of the establishment of girl's education but also previously in terms of the military academy) it is plain that he would remain at risk from the Taliban because of his past profile.
15. I am satisfied that the evidence in support of a finding that the appellant is at risk of being persecuted in his home area - Kabul - is overwhelming. In terms of internal relocation, his employment took him to four provinces; he would be known there. If he were to relocate to a province other than one of those four he would be identified as a newcomer and his origins would be quickly established. There is very little doubt but that the Taliban would be able to find him. He is not and was not a low level insignificant person but someone who played a significant role in government policies which are anathema to the Taliban. The police are unable to offer the level of protection that would be required to render him with anything approaching sufficiency of protection. This would be even more the case outside Kabul.
16. Based on the totality of the evidence before me, I am satisfied that the appellant is unable to access sufficiency of protection anywhere in Afghanistan. He is at risk of being persecuted and I allow his appeal.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision
I re-make the decision in the appeal by allowing it on international protection grounds.

Date 21st November 2016
Upper Tribunal Judge Coker