Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03284/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 4 August 2016
On 8 August 2016

Before

Upper Tribunal Judge Southern

Between

M.K.
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A. De Ruano
For the Respondent: Mr T. Wilding, Senior Home Office Presenting Officer

DECISION

1. The appellant, who is a citizen of Afghanistan, arrived in the United Kingdom in April 2014 and was admitted as a student with leave to remain until 30 October 2015. Having returned to Afghanistan on 19 September 2014 she travelled back to the United Kingdom arriving there on 1 October 2014. Not long after that, on 18 May 2015, she claimed asylum on the basis that should she return to Afghanistan she will be forced into an unwelcome marriage and subjected to other mistreatment at the hands of relatives.

2. The parties are aware, of course, of the full detail of the appellant's claim and for present purposes the following summary will suffice, which I take from the appellant's witness statement. In doing so, it has to be recognised that there are some difficulties with chronology but I do not see that very much turns upon identifying precisely the correct dates for the various events described.

3. The appellant was born into a large family. This was a traditional patriarchal family in which the prospects for girls were generally limited to an early marriage. She had 8 sisters and 3 brothers. All of her sisters were married at an early age but the appellant, after she had moved with her parents from their village home to Kabul, was able to go to school and then college and university in pursuit of further education. She was then able to go to work.

4. In about 2013 her father demanded that she be married to a man named [HF] and a Nikah was arranged. The appellant was against this for many reasons, not least because [HF] wanted her to give up her work. She described being assaulted and ill-treated by this man which led to her making a complaint to police. When her father and brothers found out about this she was locked in the house and beaten. Realising her predicament in Afghanistan, she applied online to join a course at the London School of Commerce to study for a Masters' degree. Her application was successful and with her mother's help she secured a visa and then travelled to the United Kingdom.

5. In early July 2014 she heard from her mother that she was sick and that her father's health condition was also "really bad". She asked the appellant to come back to Afghanistan to see her father and assured the appellant that those who sought to do her harm would not be informed of her visit. However, when she arrived in Kabul her brother, who was angry she had left without permission, beat her and locked her in a room and said she would be killed. The following day she received a further beating from another brother after which her mother took her to hospital. After this members of her husband's family, who had learned of her visit, came to the house for her but were denied entry. This caused a violent clash between the two families with threats being made to the appellant's life because she had violated the honour of the other family. In order to avoid being forcibly restored to her husband, the appellant's mother arranged for the appellant to get access to her passport, escape from the house and get a taxi to the airport where she took a flight back to London. If she returns to Afghanistan the appellant says that she will be killed.

6. The judge dismissed the appellant's appeal against refusal of her asylum claim because he did not accept that she had given a truthful account of her experiences in Afghanistan and he did not accept to be true her account of events at the core of her claim.

7. In granting permission to appeal, Designated First-tier Tribunal Judge Macdonald said:

"The grounds of application identify what are said to be a number of factual errors by the judge which, taken cumulatively, might translate into an arguable error of law."

8. The grounds are certainly wide ranging in the scope of the challenged raised and in his oral submissions Mr De Ruano made clear that he relied upon all of those grounds. Therefore I shall address each in turn.

9. Mr De Ruano opened his oral submissions by drawing attention to the fact that the judge said, at paragraph 13 of her decision, that the account given by the appellant has been "broadly internally consistent". It is to be noted that the judge said also that was something that she would bear in mind, adding that there were some issues of inconsistency and plausibility. In recognising that tension in the evidence the judge embarked upon her examination of the evidence in precisely the correct manner.

10. The first complaint raised in the grounds concerns what the judge made of the appellant's evidence of having been taken to the hospital in Afghanistan after having been beaten by her brothers. The judge said, at paragraph 15:

"? She was advised to undergo a CT scan but at her family's insistence permission was given to take her home? I also note that there is no explanation as to why, having taken her to hospital semi-conscious, the appellant's mother and sister would then take her home against the medical advice that she required a CT scan."

In Mr De Ruano's submission that reasoning discloses error of law because, on his instructions provided by the appellant subsequent to the hearing, that hospital had no CT scan equipment and so that scan could not have been carried out there an then. His point is that if this concern had been put to the appellant, that is what she would have said. As it was not, she has not had the opportunity to correct a misunderstanding by the judge of the true position. However, the judge is not here making a credibility finding. She is doing no more than making clear what she makes of the evidence as she discusses it. She is doing no more than recording that there is a lacuna here in the evidence and nothing offered to fill it. It cannot possibly be said that this was a determinative finding or one that was even of significance to the outcome of the appeal. In any event, the evidence of the appellant as set out in her witness statement was that although her mother took her to the hospital "? they did not even complete the treatment before they got me back home."

11. Similarly, at paragraph 16 the judge observed that a number of details were missing from a police document. The grounds complain that the judge has not had regard to what the appellant has said about that in her witness statement, which amounts to: "well that's just how it is in Afghanistan", but again, the judge is simply making an observation that the document has not been fully completed and does not suggest that she places any particular weight upon that.

12. At paragraph 17 the judge does make a finding of some significance. She said of the circumstances that the appellant said motivated her decision to visit her parents in 2014:

"A further hospital letter relates to the appellant's father and is from the Orthopaedic and Traumatology specialist. It is dated May 2014 and notes that it was a re-visit post operation on the right hip. Total rest at home for two months is noted. I do not find this particularly supportive of the appellant's claim that her father was very ill, and certainly not of a nature which might cause her to feel compelled to return after the incidents she describes."

The complaint raised about this is that the appellant's father was not the sole focus of the visit as she went to see her mother as well. Mr De Ruano submits that the judge erred in failing to have regard to what the appellant has said about this in her witness statement, but there as well she was saying that her mother asked her to return to visit her father because his health condition was "really bad". The fact of the matter is that the judge was plainly entitled to find that the nature of the father's medical condition came nowhere even close to making credible that her mother, if events had been as described, would try to persuade her daughter to return and face a risk of a repetition of the serious ill-treatment she said had previously been meted out to her, especially as the mother herself had taken a real risk in facilitating the appellant's earlier departure from Afghanistan, unauthorised by her father.

13. There is nothing at all in the challenge to paragraph 19 of the decision of the judge. Here, the judge observes that there are inconsistencies between the chronology of events as set out in the report of Professor Hale and that set out in the appellant's own evidence. As the grounds themselves recognise, the judge made clear that this may have been an error by the author of the report, not to be held against the appellant.

14. At paragraph 21 of her decision, the judge explained that she detected a difficulty in the appellant's evidence in that, given her account of a strictly traditional family with women being completely subservient to the men of the family, with "girls are not allowed to talk and she had to listen to her brothers and father", as the menfolk of her family disapproved of her ambition to pursue further education and then to go out to work, the judge observed:

"In my view, no credible explanation has been given as to how, in the context of this background, the appellant was allowed to study, go to university and gain a bachelor's degree in business and then obtain employment as a financial controller with a construction company earning "a good salary". The appellant has stated that her mother argued for her to be allowed to study and the money she was earning contributed to the household. However, I still find that inconsistent that the appellant was able to save a large part of her salary in secret towards obtaining her visa, stating in the medical report that she had held back 70% of her salary."

Mr De Ruano submits that the judge should not have taken that view of the evidence because the appellant has set out in her evidence an adequate explanation to rebut the apparent contradiction implicit in this. But that expression of disagreement comes nowhere even close to identifying an error of law. It was for the judge to make what she did of the evidence and she was unquestionably entitled, for the reasons given, to find this aspect of the appellant's evidence lacking in credibility.

15. Nor did the judge find credible the appellant's explanation of how she managed to make two trips to Islamabad in order to secure her visa to come to the United Kingdom without her father and brother being aware of that. The judge considered the explanation offered, the pretence of visiting a sick relative, but rejected it as incredible. Mr De Ruano submitted that the judge had overlooked the reason given for the appellant having a passport, that being an earlier trip with her mother for medical treatment, but that is to miss the point being made by the judge. It was surprising not that the appellant possessed a passport at all but that she had access to it, given all that she had said about the male dominated controlling environment in which the family operated.

16. At the heart of the reasoning that led the judge to reject as untrue the claim of an abusive, disapproving family that sought to ill-treat the appellant and to force her into an unwanted marriage were two key matters. First, the account of the appellant's education, employment and ability to keep most of her own money simply did not sit with her family being one that thought of and acted towards girls and women as the appellant claimed they did. Secondly, the judge found it lacking in all credibility and incapable of belief that had the appellant been beaten and threatened as she had claimed by her father and brother that she would have risked not just more of the same treatment but also forfeiting her opportunity to study in the United Kingdom by returning to her family and the possibility of being returned to her husband, who had made it clear that she should not continue to work, let alone travel alone to the United Kingdom to study, when the reason for doing so plainly did not demand that she did.

17. The grounds complain that the judge did not adequately engage with the appellant's detailed account of the steps she took to minimise exposure to risk during her visit and that these concerns of the judge should have been put to the appellant for her to comment. However, the judge has had regard to all of the evidence and has given clear, cogent and legally sufficient reasons for arriving at findings of fact that were plainly open to her on that evidence.

18. In short, the conclusions of the judge are simply unassailable. It was not necessary for her to deal specifically with every aspect of the evidence and to engage with every detail of the appellant's account. What was required of the judge is that she explain clearly why she reached the conclusion she did and that is precisely what she has done.

19. Thus, the other points raised in the grounds, lead nowhere. The judge was plainly entitled to find surprising that a lengthy email from the appellant's sister omitted any mention of the single most important aspect of the claim, the appellant's visit in 2014, and the observation that the appellant had not sought medical treatment for the issues she disclosed to Professor Hale was not in anyway problematic.

20. The suicide risk now asserted in the grounds was not raised as a discrete ground of appeal and there was no reason for the judge to address that in her decision.

21. For these reasons I am entirely satisfied that the judge made no error of law and so there is no proper basis upon which her decision may be disturbed.

Summary of decision:

22. The Judge of the First-tier Tribunal made a no material error of law error of law

23. The appeal to the Upper Tribunal is dismissed

24. The decision of First-tier Tribunal Judge Mace is to stand.

Signed

Upper Tribunal Judge Southern

Date: 5 August 2016