Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03071/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28th October 2016
On 2nd December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

MR MUHAMMAD FAHEEM
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr C Talacchi, Solicitor
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Pakistan born on 3rd March 1986. The Appellant has an extensive immigration history. He visited the UK between November 2009 and February 2013 using a student visa that he had acquired. Between July 2013 and February 2015 the Appellant applied for a substantial number of family visit visas some of which were issued, others refused and on one occasion one voided. The last application for a visit visa made on 3rd June 2015 led to the Appellant on 9th September 2015, with his dependant, using his own national passport travelling to the UK where on the same day he claimed asylum upon arrival.
2. The Appellant's claim for asylum is based on a purported well-founded fear of persecution on the basis of a non-Convention reason namely his fear of persecution due to his marriage. The Appellant claims to have been subject to four attacks as a result of his marriage and fears that he would be at risk on return from his wife's family due to his having married her against her family's wishes. The Appellant's application was considered by the Secretary of State and was refused by Notice of Refusal dated 19th November 2015.
3. The Appellant appealed and the appeal came before First-tier Tribunal Judge Khan sitting at Harmondsworth on 17th June 2016. In a decision and reasons promulgated on 19th July 2016 the Appellant's appeal was dismissed under the Immigration Rules and Articles 2 and 3 of the European Convention of Human Rights and the Appellant was found not to be in need of humanitarian protection.
4. On 29th July 2016 the Appellant lodged Grounds of Appeal to the Upper Tribunal. Those grounds submitted that the judge should have accepted the oral evidence of the witnesses and failed to make adequate findings on the testimony and in relation to the documents produced. On 10th August 2016 First-tier Tribunal Judge Chambers refused permission to appeal stating that the grounds sought to re-argue issues already appropriately dealt with by the judge.
5. On 5th August 2016 renewed Grounds of Appeal to the Upper Tribunal were lodged. On 26th September 2016 Upper Tribunal Judge Blum granted permission to appeal. Judge Blum noted that although the First-tier Tribunal Judge was undoubtedly entitled to draw an adverse inference from the inconsistencies between the accounts given by the Appellant and his wife it was arguable that there had been no satisfactory assessment of the medical evidence and the other documentary evidence contained in the Appellant's bundles and that had the judge engaged with this evidence his ultimate credibility conclusions may have been different.
6. On 14th October 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. That response notes that the Appellant argues that the judge had failed to consider core elements of the Appellant's case and that the judge's findings at paragraphs 54 to 57, 62 and 65 were ones that were open to him.
7. It is on that 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 Talacchi and the Respondent by her Home Office Presenting Officer Mr Armstrong.
The Basis of the Appeal
8. As a preliminary issue it is appropriate to record that there is agreement between the legal representatives that despite the wording of the decision of the First-tier Tribunal what I have before me is an appeal for a protection claim as defined within Section 82 of the Nationality, Immigration and Asylum Act 2002.
Submissions
9. Mr Talacchi relies as his starting point on the Grounds of Appeal and the amended Grounds of Appeal. He reminds me that in brief the Appellant's claim is that he and his wife are at risk of attack from her family because they married without her family's consent. He states that they suffered attacks in Pakistan from her family before fleeing to the UK after the Appellant's wife became pregnant and that although the attacks were reported to the police the police failed to provide them with any sufficient protection because they took the part of their attackers. He acknowledges that in essence the First-tier Tribunal Judge refused the appeal because he did not believe the oral testimony of the witnesses as he has explained in paragraphs 55 to 61 of his decision. He states that the Appellant had given clear testimony that there had been four attacks and they are described in the Appellant's witness statement. He further points out that at pages 5 to 8 of the Appellant's bundle there is a short witness statement from Mrs Bibi and that the judge made no findings regarding it. He submits that statement was material and that it was open to the judge to find it credible and that that might have ultimately affected the findings made by the Immigration Judge in his conclusions.
10. Secondly he takes me to the incident that occurred on 24th July referred to at paragraphs 19 to 23 of the Appellant's witness statement. He submits that there are three salient features therein namely that there was corroboration of the injuries received in the police report to be found at page 33 of the Appellant's bundle and page 36 with regard to the medico-legal examination certificate which makes reference to the injuries. He submits that the judge made no findings regarding these documents and that he should have done so and that had he made a finding that was consistent with the evidence this would have been material as it again affected the Appellant's credibility findings. Further he considers that the police report (to be found in the supplemental bundle pages 9 to 12) has not been factually referred to.
11. Further he turns to the incident of 10th August referred to at paragraphs 24 and 30 of the Appellant's witness statement and that the medical evidence relating thereto to be found in the bundle. He again comments that the judge had failed to make reference to this evidence.
12. At this juncture Mr Armstrong intervened pointing out that this is actually inaccurate and that this evidence is referred to at paragraph 65. He submits that the judge is aware and has given due consideration to the evidence and that he has given further consideration to legal authority. He contends that the judge has justified his findings and considered the core elements of the case along with the pertinent and relevant documents. He takes me to paragraphs 64 to 67 and the strong findings made therein by the Immigration Judge.
13. In brief response Mr Talacchi points out that the judge has concentrated on credibility findings, as has the Secretary of State in his Rule 24 response, but has failed to make a proper and detailed assessment on the medical evidence.
The Law
14. 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.
15. 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
16. A proper approach to credibility requires an assessment of the evidence and of the general claim. In asylum claims, relevant factors are firstly the internal consistency of the claim; secondly the inherent plausibility of the claim; and thirdly the consistency of the claim with external factors of the sought typically found in country guidance. I accept that it is theoretically correct that a claimant need do no more than state his claim but that claim still needs to be examined for consistency and inherent plausibility. In nearly every case external information against which the claim could be checked will be available.
17. In this case the judge had the benefit of hearing the oral testimony of the Appellant and his wife. He notes that the Secretary of State has raised credibility issues against the Appellant stating that the Appellant's account was not credible nor consistent and that he had made inconsistent and contradictory statements in his screening and substantial asylum interviews. He noted the oral testimony given by three witnesses before him.
18. It is important to note what the judge has found. At paragraph 56 he found that the Appellant continued to make contradictory and inconsistent statements throughout his oral evidence. He gave reasons for that. At paragraph 57 the judge was so disenchanted with the evidence provided by the Appellant that he concluded that the Appellant was making up his evidence as he went along during the proceedings. At paragraph 58 he goes on to set out examples of contradictions and inconsistencies in the Appellant's testimony.
19. He makes similar findings against the testimony of the Appellant's wife at paragraph 59 having taken into account her mental health and then gives examples of her contradictory and inconsistent evidence. At paragraph 60 he makes a finding that the Appellant had changed and fabricated his evidence in order to make an asylum claim in the UK. Finally at paragraph 61 he gives an overview of the evidence provided by the Appellant, his brother and his wife and makes findings that they were neither credible nor consistent witnesses.
20. Those are findings that the judge was entitled to make. The submissions on behalf of the Appellant contend that he has failed to give due and full proper consideration to a number of documents produced before him. That is not accurate. So far as the wife's mental health is concerned it is clear from paragraph 65 that the judge has been very much aware of this issue and of the documents relating to it. He has clearly examined this evidence. Further the judge has specifically referred at paragraphs 16 to 22 to the Appellant's case on documents. It is acknowledged by Mr Armstrong that not every document is referred to by the judge in his decision but the obligation of the judge is to consider documentary evidence in the round and it is clear from his decision that he has done so.
21. Having heard the submissions and given due and full consideration to the decision of the First-tier Tribunal Judge it would appear that the judge has considered the evidence including documentary evidence albeit he has not referred to all of it. He has having considered the evidence made detailed credibility findings and given sustainable reasons for those conclusions. They are damming in the extreme against the Appellant. This is a judge who has carried out a full and thorough analysis of the evidence. He has made findings of fact that he was entitled to and albeit the lower standard of proof that is upon the Appellant in protection claims it is clear that he has come a long way short of meeting the required burden of proof and being able to discharge it. The Appellant was disbelieved by the judge. The judge was entitled to make such a finding providing he gave his reasons which he has done. The grounds consequently do little more than seek to re-argue issues already dealt with appropriately by the judge. In such circumstances they amount to little more than mere disagreement. For all the above reasons the decision of the First-tier Tribunal discloses no material error of law and the appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.
Notice of Decision

The decision of the First-tier Tribunal Judge discloses no material error of law and the Appellant's appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.

No anonymity direction is made.

Signed Date 2nd December 2016

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 2nd December 2016

Deputy Upper Tribunal Judge D N Harris