Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03205/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 September 2016
On 28 September 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

MAKA NATSVLISHVILI
(aNONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Coleman, Counsel, instructed by Freedom Solicitors
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS
The Appellant
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Zahed who dismissed her asylum appeal, under Section 83 (1) of the Nationality Immigration and Asylum Act 2002, against the decision of the Secretary of State dated 6 November 2015. The appellant's case is that she would face a mistreatment by a man on the investigation committee who has been threatening her father and her family in Georgia. The appellant worked as a director of a theatre company and her problems began in Georgia in 2012 and gradually increased as the new government took over and conditions worsened.
2. Her immigration history is such that the appellant applied for a student visa in 2015 and entered the UK on 25 May 2015. She claimed asylum one month later.
3. The grounds challenge the decision of First-tier Tribunal Judge Zahed on the basis that he applied too high a standard of proof and failed to consider material evidence properly and in the round.
4. In particular
(i) the judge failed to dismiss the appellant's claim at paragraph 27 and 28 that she received Skype calls and failed to take into account that she had explained in her evidence that she had not mentioned the Skype calls because she lacked evidence to prove the same and that the solicitor had known but had not acted upon the information. In this regard the appellant had produced new evidence showing that she had contacted her previous solicitor.
(ii) in relation to her mother's arrest, the judge found that the appellant's mother did not mention her arrest in her letter and that the incident was only mentioned for the first time at the hearing. The judge had failed to take into account the tight timeframe within which documents were posted out to the appellant by her mother and that the appeal bundle had already been filed and served by the time the information came to light. Once again the appellant's mother had now provided additional evidence about her detention.
(iii) that the advocate's information about the bail application for the appellant's father was not supported by the evidence, (paragraph 40 of the decision, and the judge found this undermined his credibility such that little weight could be attached to the letter. The judge had failed to consider the letter in the round and that it provided corroborative evidence of the fact of prosecution. The judge erred in dismissing the advocate's letter without further consideration.
(iv) the judge had found at paragraph 42 that it was implausible that the appellant's father would continue to gain contracts for two years into the new term if he had been politically connected. The judge had failed to take into account the appellant's evidence that her father was not directly connected to the government but supported it and inevitably not each and every person who supported the previous government would be immediately persecuted. However when the appellant's father clashed with Zakaria Kutsnashvili he was identified and thereafter persecuted.
(v) at paragraphs 45 and 46 the judge found that the appellant delayed in leaving Georgia and also in claiming asylum. In making the assessment the judge failed to take into account the appellant's evidence that she left Georgia as soon as possible after receiving the visa. The judge failed to take into account the fact that travel arrangements had to be made and equally the judge failed to take account of the appellant's explanation for why she did not claim asylum immediately. She supplied a full explanation of her thoughts and beliefs.
5. Permission to appeal was granted on the basis solely that the judge had arguably failed to apply the lower appropriate standard of proof when determining past facts and reference was made to the last sentence of paragraph 29 and the penultimate sentience of paragraph 35.
6. Mr Coleman at the hearing before me submitted that it was unclear whether the judge, when considering the evidence for example at paragraph 28, was referring to the evidence of not producing the evidence of Skype or failing to give the evidence prior to or at the hearing. Mr Coleman also stated there was a difference between being politically connected and supporting the government and the judge had erred in his reference to political connection.
7. Mr Bramble defended the decision. The judge may have used a looser wording when referring to "on the lower standard" and should have referred "to the lower standard" but on an overall reading of the decision this did not detract from the judge's finding. This was a thorough determination and the judge had given significant reasons for rejecting the applicant's claim. It was now submitted and advanced that the judge should not have found that the father was connected but rather supported but this did not alter the basis of the claim or set too high a standard.
8. I find there is no merit in the application. The judge clearly directed himself as to the burden and standard of proof at [4] of the decision and whether there were 'substantial grounds for believing she would face a real risk of suffering serious harm within the meaning of paragraph 339C of the Immigration Rules (as amended)'. I have reviewed the application of that standard of proof in the light of the grounds above.
9. The judge at paragraph 20 clearly set out that the appellant had stated that
"she and her family face persecution because of political reasons as her parents both supported the previous government, her father had been awarded many contracts by the previous government and that the new government is acting against the supporters of the previous government."
10. This could not be clearer in terms of how the case was set and that the judge has clearly identified that the claim was based on the family supporting the government. There is no merit in Mr Coleman's assertions that the judge deviated from the claim and indeed this was not part of the permission grant.
11. Turning to an assessment of the application of the standard of proof I have addressed each of the grounds of complaint as above.
12. In response to (i) the judge made a series of careful findings in relation to the clams of her Skype calls from [26] to [29] and reading those findings overall it is clear the judge refers to the evidence as a whole. Not least at paragraph 26 the judge found that the appellant herself confirmed that a person would be required to know her Skype ID and her Skype ID was not her name and that further, the authorities would put pressure on the appellant through her Skype account in order to contact her father.
13. It was open to the judge to note that the Skype call was mentioned for the first time in oral evidence before him. As the judge stated
"Had the Skype call occurred in a manner and was as significant as stated by the appellant, given the fact that the reason she left the previous solicitors firm was because they did not do anything about the Skype call, that the appellant would have mentioned it in her witness statement dated 21 April 2016, just a month after the alleged Skype call".
14. I note, this was entirely inconsistent with the appellant's application for permission to appeal on the basis that the reasons she had not mentioned it was because she could not prove it.
15. Although the judge has referred to the standard of proof as being "on the lower standard" the judge clearly took into account that the appellant had not submitted any evidence of such a Skype call or indeed "attempted to contact Skype to provide such evidence of a Skype call given the importance of such a call to show a continuation of the threat". This was a cogent finding and reasoning on behalf of the judge and there is no indication albeit that it may be inelegantly phrased by the use of 'on' rather than 'to', that the judge used the wrong standard of proof.
16. With regards ground (ii), at paragraph 32 the judge gave clear reasons as to why he rejected or placed no weight on the letter from the appellant's mother on the basis that there was no mention of the fact that she had been arrested. The permission application makes note that the judge failed to take into account the tight timeframe in which the documents were posted but as the judge states, the documents were in fact scanned. It is the evidence before the First-tier Tribunal Judge which I must concentrate on, not fresh evidence produced in order to bolster the claim.
17. In relation to ground (iii), the advocate's letter, the judge had already made a series of credibility findings against the appellant and at paragraphs 39 and 40 found that the advocate's letter did not chime with the documents produced in relation to the court papers. The judge clearly states that this damages the credibility of the advocate and applying the case of Tanveer Ahmed found this inconsistency damaged the credibility of the letter he had produced and therefore the judge attached little weight to the letter. I am not persuaded the findings disclose the application of the wrong standard of proof. The judge did give full consideration to the advocator's letter and considered the evidence in the round and in the light of the credibility findings overall.
18. In relation to ground (iv), on the one hand the appellant states that the father was a supporter of the government and on the other hand states that he was not connected. Needless to say the claim was advanced on the basis of the political associations of the appellant's father and as the judge stated, he did not accept that the appellant's father would be awarded "large contracts by the new government and the local area two years after the new government had taken power given the fact it is claimed he was politically connected to the previous government and was awarded many contracts by them".
19. The judge clearly put this in the context of the background information and although he may have used "politically connected" in a rather looser fashion than the appellant would prefer, there is no doubt that he was entitled to make this finding and that it was not consistent with the claim that he was being targeted should he have received large contracts two years after the new government had entered power. The judge also listed his findings at paragraph 43 to criticise the claim of the appellant, finding that it was inconsistent that she claimed it was a more corrupt system albeit that her father had been awarded large contracts after the introduction of that and initiation of that said corrupt system. That was a clear finding open to the judge which does not involve an error in the application of the standard of proof.
20. With regards to ground (v) the judge made further findings in relation to the delay of the appellant's claim and this he was obliged to do under Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and entitled so to do. The judge recorded
"47. I find taking the many inconsistencies into account and taking the above findings into account that the appellant has not been a credible witness and has sought to embellish, bolster and fabricate a claim whereby her father was investigated and charged with misuse of public funds into being persecuted for political reasons. I find that the appellant's father is being prosecuted for political reasons. I find that the appellant's father is being prosecuted and not persecuted. I do not find that the appellant or her family has been threatened as claimed by the appellant by the authorities. I have not accepted any part of her claim and find that she faces no risk on return. I thus dismiss her asylum claim."
21. The judge has made it plain that he had not accepted any part of the appellant's claim, and based those findings on having carefully and explicitly analysed and rejected the evidence for a variety of reasons to the correct standard and which included an assessment of the relevant facts. The judge twice referred to 'on the lower standard' but having made the direction that he did at the outset of the decision with regard to the standard of proof and having made the findings that he did overall and in the way that he did, I am not persuaded that there is any misapplication of the correct standard of proof. The decision shows no error of law and the decision shall stand.

Signed Date 27th September 2016

Upper Tribunal Judge Rimington