Tribunal decisions

The decision

IAC-BH-PMP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03510/2016

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 13th March 2017
On 22nd March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

ASHKAN BAYRAMGHIGHI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Rutherford of Counsel instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
Background
1. On 1st December 2016 Judge of the First-tier Tribunal Gillespie gave permission to the appellant to appeal against the decision of Judge of the First-tier Tribunal Broe who dismissed the appeal on all grounds against the decision of the respondent to refuse asylum, humanitarian and human rights protection to the appellant, a male adult citizen of Iran.
2. Judge Gillespie thought it arguable that Judge Broe had made a material error of law by failing to consider whether the internet activity of the appellant involving the publication of Christian material would be reasonably likely to expose him to risk of harm on return to Iran. This was even though the judge had rejected the appellant’s claim to have genuinely converted to Christianity.
3. In the grounds of application Counsel had also submitted that the judge had given inadequate reasons for rejecting the appellant’s claim to have converted to Christianity. In relation to the judge’s alleged failure to consider the appellant’s internet activities, reliance was placed upon the Upper Tribunal decision in AB and Others (Internet activity – state of evidence) Iran [2015] UKUT 257 (IAC) on the basis that the appellant’s online posts on Facebook would come to the attention of those interrogating him at the airport on return, the Iranian authorities not being concerned about a person’s motivation for posting material.
The Hearing
4. Ms Rutherford confirmed that the appellant relied upon the grounds. She drew my attention to paragraphs 30 to 32 of the decision in which the judge reached conclusions about the appellant’s claimed conversion to Christianity. In particular, she thought that the judge had failed to give adequate consideration to the supporting evidence of Mr Martin and Mr Baillie, especially when the judge had reached the conclusion that no adverse finding could be made against Mr Baillie and that he gave his evidence in good faith. The judge had also failed to consider the point arising in AB at all, even if he was not satisfied that the appellant was a genuine convert to Christianity.
5. Mr Bates relied upon the response of 3rd February 2017 which argued that there was no reason to suspect that the Iranian authorities would have any interest in the appellant or that his Facebook posts would be available to the Iranian authorities. He also emphasised that the judge had given adequate reasons for finding that the appellant’s main asylum claim to have been at risk as a follower of Nemat Allahi Gon Abadi faith to be unfounded. He also suggested that, as the appellant was expected to tell the truth about his failed asylum claim, any internet information would be considered by the authorities to be of no relevance as the appellant was not a convert to Christianity. Mr Bates also referred to the country guidance decision in SSH and HR (Illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) at paragraph 30, which emphasised that one could expect a degree of reality on the part of the Iranian authorities in relation to people who had made up a story in the interests of advancing their economic migrancy claim.
6. Ms Rutherford responded by pointing out that the decision in SSH and HR did not consider any risk derived from internet activity. She emphasised that there would be an enhanced interest in the appellant because of his failed asylum claim. She also emphasised that the judge’s consideration of the evidence to support the claim of conversion to Christianity was inadequate, bearing in mind that there was no dispute about the appellant attending church and no disagreement with the evidence of Mr Baillie.

Conclusions and Reasons
7. At the end of the hearing and after I had considered the matter for a few moments, I announced that I had concluded that the decision of the First-tier Judge contained errors on points of law and so should be set aside and re-made before the First-tier Tribunal as all issues would need to be considered again. My reasons for that conclusion now follow.
8. In AB and Others the Upper Tribunal emphasised the interest which the Iranian state takes in its nationals use of the internet and its determination, if not particularly successful, in restraining it. The Tribunal also found that there was “clearly some level of interest within Iran in the comments of people living outside Iran”, especially for those who had built up a profile. The main concern was what happened at the pinch point of return, especially for those who had not been discrete in their blogging activities. It was also found that the touchiness of the Iranian authorities did not seem to be in the least concerned with the motives of the person making the claim. These comments are to be found in paragraphs 457 to 464, inclusive, of AB and Others and are fully set out in the grounds.
9. Having regard to the above matters, it is clear that it was incumbent upon the judge to examine the risk to the appellant arising from his claimed internet activity, even if the judge believed that the appellant had not shown that he was a genuine convert to Christianity. The judge’s failure to do so amounts to an error on a point of law.
10. I am also able to find that the judge’s consideration of the appellant’s claimed conversion was inadequate. Even though the judge was entitled to take into consideration that the appellant had made an asylum claim relating to a different religious sect which was not believable, significant amounts of evidence were put before him which had to be fully considered before the claim to be a Christian convert could be rejected. In particular, evidence was heard from Mr Baillie, a Farsi speaker who had spent ten years in Asia, who specifically worked in a team to discern those who were genuine converts. Although the judge details the evidence from Mr Baillie, no reasons are given in the decision for it being rejected. Indeed, in the final sentence of paragraph 32, the judge indicates that no adverse finding was made against Mr Baillie whose evidence was accepted in good faith. Cogent reasons were therefore required to explain why that witness’s evidence derived from expertise in discerning those who were genuine Christian converts was rejected on this occasion. This is a further error on a point of law.
11. In view of the errors to which I have referred and the effect of those errors on all of the credibility findings in the decision, it is my conclusion that the decision of the First-tier Tribunal should be re-made afresh by remittal to the First-tier Tribunal. This accords with paragraph 7.2 of the Practice Statement of 25th September 2012.

DIRECTIONS
12. The appeal is to be heard afresh before the First-tier Tribunal sitting at the Stoke Hearing Centre.
13. The hearing should not take place before Judge of the First-tier Tribunal Broe.
14. The time estimate for the hearing is three hours.
15. A Farsi interpreter will be required for the hearing.
16. The hearing will take place on a date specified by the Resident Judge.
17. Representatives should submit consolidated bundles of evidence for the remitted hearing.

Anonymity
The First-tier Tribunal did not make an anonymity direction nor was such a direction requested before me in the Upper Tribunal. No such direction is therefore made.

Signed Date 21 March 2017

Deputy Upper Tribunal Judge Garratt