Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03456/2015

THE IMMIGRATION ACTS

At North Shields
Decision and Reasons Promulgated
on 23rd November 2016
on 15th December 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MR. M. N-N
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the Appellant: Mrs. Brakaj of Iris Law Firm.
For the Respondent: Mrs R. Pettersen, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. I make an anonymity order to reduce any potential risk to the appellant from third parties as decisions of the Upper Tribunal are readily accessible on the Web.

2. The appellant is a national of Iran born in 1986. He claimed protection on the basis he is at risk if returned because of imputed political opinion. The claim is premised upon the authorities wanting him for having a prohibited book. His identity is accepted and the respondent accepts that he could be at risk if of interest to the authorities in Iran.

3. He said that a friend gave him a book to mind. The appellant subsequently had a quick look at the book and saw it was an insulting account of the life of the former Supreme Leader in Iran, Ayatollah Ruhollah Khomeini. From the content he realised the book could bring the reader into difficulties with the authorities and so he decided to return it to his friend. He went with the book to the gym where his friend regularly trained but he was not there. As he was leaving a car pulled up and a number of men approached the appellant. A scuffle followed during which he managed to escape but left his bag containing the book behind. He noticed the men had radios and believe they were from the Iranian security services. Because of this he did not go home but went to a friend's house where he remained for a few days. He telephoned his family and was advised State agents had visited. His friend was able to find out more details about the book by asking his father, a University Professor, and the conclusion was that the appellant would be in danger for having it. It was decided that he should leave Iran and with the help of an agent travelled overland to Turkey and then flew to the United Kingdom.

4. His claim was refused by the respondent on the basis his account was not credible.

5. His appeal was dismissed by First-tier Tribunal Judge Row. The judge did not find the account credible and referred to internal inconsistencies. Permission to appeal to the Upper Tribunal was granted on the basis that it was arguable that the judge made material errors of law in reaching this conclusion on the appellant's credibility.

The First tier Tribunal.

6. The judge referred to a number of aspects considered relevant in the assessment of the appellant credibility. I summarise these as follows :

(i) During the appellant's national service he worked for the police. Given this background the judge questioned the likelihood of entrusting a dangerous book to him because of the risk he might inform.
(ii) If the authorities were aware the appellant was in possession of an illegal book why they would they seek to approach him at the gym where he might not have the book instead of attending at his home.
(iii) The judge commented on his account of the scuffle and escape, stating that it varied. In his asylum interview he said he ran down the street and jumped on a motorcycle taxi whereas in his statement and oral evidence he saw someone on a motorbike nearby and pushed the rider off and used it to escape. Although the judge considered it a minor point there was a variation in the number of people involved.
(iv) At hearing, the appellant said he telephoned his parents the following day and his mother said the security forces had visited the previous night and taken his father away. However, in his asylum interview he said when he telephoned his father answered and said government agents had been to the house the previous night and there was no mention of anyone being taken away. The judge found this to be a major discrepancy.
(v) The judge commented on the absence of evidence that the book was prohibited in Iran and described this as fundamental to the claim. This had been raised in the refusal letter and the appellant in the intervening time had failed to produce any evidence about it.
(vi) The judge also referred to section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2004, commenting that the appellant had not claimed protection in Turkey or Dubai.
(vii) In oral evidence he described using a passport in his own name which was a forgery which he destroyed before approaching the UK immigration authorities. Had he produced a passport this would have indicated the plane he arrived on and further checks could have been made. The appellant said he did not know what airline he travelled on. At screening he referred to having a piece of paper with a sticker on it. The judge viewed this as a failure to cooperate with the UK authorities in establishing his travel route. The judge took the view that one explanation was that he travelled on his own passport and then destroyed it to prevent his return.
(viii) The judge commented that in the interval the appellant had not produced any of the documentation he had referred to in relation to his identity.
(ix) The appellant had not produced any statements from his parents or from the friend he said helped and the judge commented that he could be expected to have made some effort to contact them.
(x) Finally, the judge at paragraph 35 referred to no effort being made to contact the Iranian authorities for evidence that the appellant was wanted.
(xi) The judge in concluding referred to discrepancies in the evidence and the circumstances of the appellant's arrival in the United Kingdom as to conceal his journey and identity. The judge did not find a prescribed book established. The judge found the appellant was never in possession of an illegal book nor that the Iranian authorities had any interest in him or his family. The conclusion was that he was an economic migrant who had fabricated an account. The judge did not find the appellant had left Iran illegally but even if he had, then in line with SP (Risk on return- illegal exit) Iran CG [2009] UK AIT 00053 he would not be at real risk solely on the basis of leaving illegally.

The Upper Tribunal

7. In seeking permission to appeal issue was taken with (i) above. At hearing, Mrs. Brakaj pointed out that military service was compulsory and the fact he worked with the police did not mean his friend would mistrust him. She pointed out the appellant has a brother in United Kingdom who has been recognised as a refugee.

8. Regarding (iii), the judge had acknowledged that a discrepancy over the number of people involved was a minor point.

9. Regarding (iv), she submitted that in the appellant's statement he said that he phoned home and his mother told him his father had been taken away. She submitted that in doing so he was correcting an error in his asylum interview which recorded his father answered the telephone. Consequently, it was unfair of the judge to conclude the account was fabricated and he had forgotten which version he gave originally.

10. Regarding (vii), the leave application contended that there was no discrepancy about appellant travelling on a passport and a piece of paper with a sticker on it. Reference was made to his screening interview where he did say the agent took the Iranian passport from him in Dubai and he was given a paper with a sticker on it. In his asylum interview he referred to having a passport which he used to gain entry to the United Kingdom. It was submitted any inconsistency was minor and could be attributed to fatigue on the appellant's was part and problems with interpreting.

11. Regarding the appellant's conduct at the airport the grounds states that the respondent could have checked flights from Dubai to verify his account. In submissions Mrs. Brakaj said the appellant had produced evidence of his identity subsequently in the form of kickboxing certificates.

12. It was also contended that the judge erred in expecting the appellant to arrange to have his passport sent from Iran when his identity had been accepted. To suggest that enquiries should have been made with the Iranian officials on his behalf to see if he was wanted could have placed him at risk. The grounds argue that the appellant's did not claim to be involved in criminal activities but was at risk for imputed political beliefs.

13. In response, Mrs Pettersen acknowledge that the judge erred at paragraph 35 in suggesting contact could be made with the Iranian authorities to see if the appellant was wanted. However, she submitted this was not a material error because the judge founded the decision upon other credibility findings: principally, the inconsistency about whether his father had been detained. The claim of fatigue and problems with interpretation did not change the strength of this point.

14. She pointed out that the burden of proof was upon the appellant. The refusal letter had indicated that no information could be found by the respondent about the book at issue. The judge had commented about the appellant's failure to produce any evidence about the book particularly as he had had a year from the decision to seek this.

15. By way of reply, Mrs. Brakaj focused on the concession by the presenting officer that the judge was wrong to suggest the Iranian authorities be approached.

Consideration.

16. The decision has to be considered in the round. The judge has identified a number of material inconsistencies. The judge has indicated that some inconsistencies were viewed as significant whilst others were more minor. Although the judge raised the issue of the appellant's military service I note it ended six years earlier. However, in the appellant's statement he does say he was stationed at the disciplinary force within the police in Teheran. It was open to the judge to comment on the likelihood of someone with such a background being entrusted with dangerous material. The decision does not suggest this was a major factor in the judge's mind.

17. The judge did question why the authorities would not have gone to the appellant's home rather than following him to the gym. This was a matter of legitimate comment rather than speculation. The logic was that he could have been at the gym to do his normal training and not have brought the book with him.

18. The judge referred to inconsistencies about how the appellant escaped. His interview recorded at question 37 that after the altercation he ran a hundred metres down the road and left on a motorcycle taxi. In his statement at paragraph 6 he said he pushed someone of their motorcycle and escaped. There is a clear contradiction in the two accounts and the judge was entitled to comment on this. The judge indicates a fair approach by not placing undue weight on a discrepancy about the numbers involved. A person may have limited recollection of this but they should know the details of the claimed escape.

19. The judge attached significant weight to the discrepancy between his asylum interview where he said he phoned home and his father answered and his statement and oral evidence that his mother answered and told him the authorities had taken his father away. Mrs. Brakaj has submitted these were not inconsistencies but rather the appellant in his statement correcting an earlier mistake. However, there was no such correction following the interview and his statement does not read as if it is correcting an error. Such a discrepancy is significant and the judge was entitled to comment on it.

20. The judge then comments on the appellant's failure to claim in other countries. This is a legitimate comment although again the impression is that this was not determinative. The judge was influenced by what the appellant did on arrival at the airport. If a person on reaching a safe haven destroys documentation which would make their return more difficult this is a legitimate matter to comment on. The judge has highlighted a discrepancy as to the documentation used and this is apparent from the screening and subsequent account. Such matters were relevant in assessing credibility.

21. The judge rightly pointed out that central to the claim was the appellant having a prescribed book. He named the book and the author but the respondent could find no trace of it. The judge was entitled to comment that the central aspect of the claim had not been demonstrated.

22. The presenting officer has acknowledged that it was incorrect to expect an approach to the Iranian officials to see if the appellant was wanted. Whilst on the face of it this may appear unrealistic to expect this, in fairness to the judge this was stated in the context of offences being committed under the penal code. It was accepted by the respondent that if the appellant's conduct imputed political opinion to him and he was adverse interest to the authorities he would be at risk. Whilst the judges comment here is perhaps misconceived I do not find it central to the decision.

23. The judge has set out a number of factors in assessing the truth of the claim. The points made were valid and from these the judge was entitled to dismiss the claim on credibility grounds. There was a general improbability of him being asked to mind the book in the circumstance. There was the discrepancy about how he came to be on a motorcycle. There was the significant the inconsistency about his father's detention. There was his behaviour in relation to travel documents . Finally, there was no evidence about the prescribed book that was central to his claim. I asked at the hearing if since anything more had been found and was advised not. Furthermore, no further documentation had been made available. The judge did look at the evidence as a whole and a credibility assessment requires analysing detail and evaluating matters in the round.

Conclusion

24. It is my conclusion that First-tier Tribunal Judge Row gave careful consideration to the appeal and identified substantial credibility issues justifying its dismissal. I find no material error of law and the decision shall stand.

Decision.

No material error of law has been demonstrated. Consequently, the decision of First Tier Tribunal Judge Row dismissing the appeal shall stand.

Deputy Upper Tribunal Judge Farrelly