Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03719/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 16 January 2017

Before

UPPER TRIBUNAL JUDGE blum

Between

ASHRAF USMAN
(anonymity direction NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Khan, Counsel, instructed by Thompson & Co Solicitors
For the Respondent: Ms A Fijiwah, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of Judge of the First-tier Tribunal R G Walters, promulgated on 12 October 2016, dismissing the Appellant's protection and human rights appeal against the Respondent's decision of 25 November 2015 refusing his protection and human rights claims.

Background
2. The Appellant is a national of Pakistan, date of birth 09 June 1987. He entered the United Kingdom in May 2006 with a student Visa. He was granted further periods of leave to remain in the same capacity. The last period of leave granted to him as a student expired on 22 August 2014. A further application by the Appellant for leave to remain, again as a student, was refused on 9 June 2014. On the following day the Appellant was served with form IS151 A as the Respondent believed he had used deception in obtaining earlier leave to remain in the UK (through the use of a proxy tester in an ETS English language test). On 11 August 2014 the Appellant lodged a judicial review against the refusal to grant him leave to remain as a student. He also raised article 8 grounds at this time but these were refusing 28 August 2014. His judicial review applications was refused on 22 May 2015 and, on 7 July 2015, directions were set for his removal to Pakistan. On the day before he was supposed to be removed the applicant lodged an asylum claim (16th of July 2015).
3. The Appellant's asylum claim can be summarised as follows. Although born into a Conservative Sunni Muslim the Appellant was introduced to the Ahmadi faith by Mansoor Ahmad, a friend of his uncle, in 2014. The Appellant was living with his uncle at the time and the uncle discovered his growing interest in the Ahmadi faith. As a result the Appellant's uncle made him leave his home in June 2014. The Appellant went to live with Mr Ahmad and his formal preaching began in December 2014. The Appellant was detained by the British authorities July 2015 with a view to his removal. It was at this time that the Appellant's uncle informed his father about his interest in the Ahmadi faith. The Appellant's father, together with a mullah, telephoned the Appellant and threatened him. Mansoor Ahmad was also threatened by the Appellant's father. After his release from detention the Appellant met with a local Ahmadi scholar (Murabi) and had a question and answer session in 2015, and met another Murabi in November 2015. Satisfied that he wanted to become an Ahmadi the Appellant undertook a conversion ceremony - Bait - in December 2015. The Appellant maintains that he is now a true Ahmadi and that preaching is a fundamental component of his faith. He has attended Ahmadi stalls and was invited to and attended the annual Ahmadi convention in 2016.
The First-tier Tribunal hearing
4. The First-tier Tribunal heard evidence from the Appellant, Mansoor Ahmad and Saima Nasir (who said she was the secretary for 'Humanity First' and who was born into the Ahmadi community and has been an active member ever since).
5. The judge did not find it credible that the Appellant's uncle had thrown him out of his home in June 2014 because of his interest in the Ahmadi faith but would wait for a year to inform his father of that fact. The judge noted inconsistencies between the evidence of the Appellant and the evidence of Mr Ahmad in respect of the location of the 'Baturfutuh' mosque (the Appellant said this mosque was located in Morden but Mr Ahmad said that the mosque was in Putney). There was also an inconsistency in the Appellant's evidence relating to the number of instructions he undertook from a Murabi (in his statement the Appellant made mention of only 2 instances, and this was confirmed by Mr Ahmad in his oral evidence, but in the Appellant's oral evidence he said that he had been receiving instruction for 2 months prior to his conversion and that this instruction took place every week). The judge noted a further inconsistency relating to the texts the Appellant studied (the Appellant claimed that he studied the Koran and that the Murabi gave him no other texts besides that, whereas Ms Nasir said that a prospective convert must also read "The Promised Messiah").
6. The judge noted that it was usual practice in cases of religious conversion which were said to result in persecution for a minister of religion (in the present case a Murabi) to give evidence on the question of whether an Appellant's conversion was genuine or not. The judge noted the absence of any explanation why such evidence had not been produced. The judge found the Appellant's evidence to be 'extremely vague' as to the process of his conversion. The judge drew an adverse inference from the late stage at which the Appellant made his asylum claim (the Appellant was notified on 7 July 2015 that directions were set for his removal to Pakistan on 17 July 2015, but he only claimed asylum on 16 July 2015) and the judge rejected the Appellant's evidence that he received threats from his father by telephone the 17th and 18th of July 2015 whilst he was detained at an immigration removal centre.
7. Having found the Appellant to be an incredible witness the judge rejected his account of having been threatened by his father. The judge concluded that the Appellant was not a genuine convert to the Ahmadi faith and concluded that he had no well-founded fear of persecution on being removed to Pakistan.
The grounds of appeal and the grant of permission
8. The grounds contended that the judge failed to take account of material evidence before him. No reference was made by the judge to the Appellant's Ahmadiyya Muslim Association (AMA) ID card, to the photographs of his attendance at the annual AMA convention and at Ahmadi mosques, to receipts of donations made by him to the AMA and to text messages inviting him to meetings and the annual convention. The grounds further contend that the judge failed to consider evidence from the AMA in line with binding case law (such as MN and others (Ahmadis - country conditions - risk) Pakistan CG [2012] UKUT 00389 (IAC), and R (on the application of Nj and YJ) v SSHD IJR [2016] UKUT 00032 (IAC)). It was said that the judge erred in law by dismissing the appeal on the basis that the Appellant gave 'vague answers' given that he was a new convert and his level of knowledge could not be as of an extensive nature. It was finally submitted that even if the Appellant was not a convert he would be perceived to be a convert on his return to Pakistan.
9. In granting permission judge of the first-tier Tribunal Osborne stated,
"In an otherwise focused and well-reasoned decision and reasons it is nonetheless arguable that the judge failed to consider the [relevant] country guidance case. Additionally, although the judge at [5] accorded that he had taken into account all the documents listed (including the Appellant supplementary bundle) it is at least arguable that the judge failed specifically to take into account the Appellant's Ahmadiyya Muslim Association ID card and the text messages from the UK you Ahmadi department. In all the circumstances it is arguable that the judge erred in law in arguably failing to consider the appropriate country guidance case and arguably failing to consider the ID card and text messages to which no reference was made in the decision and reasons."
Submissions at the error of law hearing
10. Mr Khan submitted that the judge failed to take into account the AMA ID card and the text messages. In order to ascertain whether the Appellant was a genuine convert the court was required to consider all documents. It was next submitted that the judge was not entitled to conclude the Appellant had given vague information in relation to the conversion. The judge had erroneously presumed that conversion to the Ahmadi faith requires something more detailed than what is actually required. Conversion in the Ahmadi faith was said to be a simple act and, in support, I was referred to page 74 and 115 of MN and others in support. Given that conversion involved a very simple ceremony the judge was not entitled to expect the Murabi who was present at the ceremony to have given evidence. It was finally submitted that the Appellant would be perceived as an Ahmadi on return to Pakistan.
11. Ms Fijiwah submitted that the evidence the judge allegedly failed to consider could not have assisted him in determining whether the Appellant was a genuine convert. It was not disputed that the Appellant had undergone a conversion ceremony and had joined the AMA. The photographs did not show the Appellant was a genuine convert. The judge's decision was based on an assessment of the Appellant's credibility. The judge was entitled to conclude that aspects of the Appellant's account were implausible, that there were inconsistencies in the account, and that the timing of the Appellant's asylum claim undermined his credibility. It was finally submitted that the Appellant would not be perceived as a convert as he was found incredible and would not undertake any Ahmadi activities in Pakistan.
Discussion
12. The sustainability of the FTT decision is first challenged on the basis that the judge failed to take into account material evidence. I accept that the judge did not make express reference to the Appellant's AMA ID card contained in the supplementary bundle, to the receipt of two donations made to the AMA , to the text messages from the UK New Ahmadi Department, or to the photographs purporting to show the Appellant at a mosque and at an Ahmadi convention. I am not however satisfied that failure to make express reference to this evidence indicates that it was not taken into account, or that the evidence had any material bearing on the genuineness of the Appellant's conversion. At [5] the judge did refer to the 2 bundles of evidence provided by the Appellant and indicated that he had taken these bundles into account. The fact that the Appellant had been issued an AMA ID card was also expressly referred to by Ms Nasir in her evidence. More significantly, it was not in dispute before the First-tier Tribunal that the Appellant had undergone a conversion ceremony or that he formally joined the AMA. The issue that the judge had to decide, which he was fully aware of, was whether the Appellant was a genuine convert to the Ahmadi faith (see [64]). The issuance of an ID card and payment receipts by the AMA do not go to the issue of the genuineness of the Appellant's conversion, they merely show that the Appellant underwent a conversion ceremony. Nor could the text messages assist the Tribunal in determining the core issue. The two text messages were merely an invitation to the Appellant to attend the annual Ahmadi convention in 2016. Likewise, the photographs merely show the Appellant at a mosque on an undetermined occasion, and at the Ahmadi convention. Given the limited probity of the documents to the issue in contention the failure by the judge to make express reference to them in no way undermines the basis for his adverse findings. The judge has not failed to take into account relevant evidence.
13. Mr Khan submitted that the judge failed to appreciate the basic nature of the bait conversion ceremony and that his dismissal of the appeal on the basis that the Appellant gave 'vague answers' was not sustainable. I was referred to the schedule of evidence in MN and others where Dr Iftikhar Ayaz described the conversion itself as 'very simple'. All an applicant needs to do is sign a letter of pledge and swear allegiance to the head based in London and he is then accepted. Mr Khan contended that the judge was not entitled, in the circumstances, to regard the Appellant's evidence of the process of his conversion as 'extremely vague'.
14. I cannot accept this submission. The judge's reference to the Appellant's 'extremely vague' evidence related to the process of his conversion and not to the actual ceremony. The judge did not draw an adverse inference in respect of evidence given by the Appellant relating to the ceremony itself or to any lack of knowledge of the Ahmadi faith. Rather, the judge drew adverse inferences based on the inconsistent evidence given by the Appellant and his witnesses (identified in paragraph 5 of this decision), the implausibility relating to the uncle's delay of over a year in informing the Appellant's father of his interest in the Ahmadi faith, and the very significant delay in the Appellant's asylum claim. The judge was rationally entitled to draw adverse inferences on the aforementioned bases.
15. In his statement the Appellant described a question and answer session in October 2015 with a local Ahmadi scholar (Murabi). At [61] the judge drew an adverse inference based on the absence of any evidence from the Murabi relating to the genuineness of the Appellant's conversion. Given that the genuineness of the conversion was a core issue in dispute the judge was undoubtedly entitled to draw an adverse inference from the absence of such evidence.
16. The grounds of appeal contended that the judge failed to consider evidence from the AMA in line with binding case law. Mr Khan did not expand upon this ground in his oral submissions. I find there is no merit whatsoever in this ground. The extracts from the cases referred to by the Appellant (MN and others and R(NJ and YJ)) indicated that the AMA was a highly organised association and was capable of providing sophisticated information on the numbers who had converted and of providing letters that were relatively detailed and which contained sourced information. There were however no letters at all in the present appeal from the AMA and no document containing any detailed and sourced information relating to the Appellant. The only documents issued by the AMA specifically relating to the Appellant are his ID card, the two text invitations and the money receipts. There was simply no evidence from the AMA before the judge for him to consider in line with the identified cases.
17. It was finally submitted that the Appellant would, even if not a genuine convert, be liable to persecution on return to Pakistan as he would be perceived as a convert. There was however no explanation as to how the Appellant's family, society in general or the Pakistani authorities would be aware of the Appellant's formal conversion. Given that the judge was fully entitled to conclude that the conversion was not genuine and that it was a ploy by the Appellant to remain in the UK, there was no likelihood that the Appellant would undertake any Ahmadi related activities in Pakistan. Moreover, the judge had comprehensively rejected the Appellant's account of being threatened by his father and a mullah. There was no basis upon which the Appellant would be perceived as a genuine convert if returned to Pakistan and the judge did not go in law by failing to consider this possibility.
18. In light of the above assessment I am satisfied that the First-tier Tribunal judge did not make a material error of law.

Notice of Decision
The decision of the first-tier Tribunal is not vitiated by any material legal error. The appeal is dismissed.

13 January 2017

Signed Date

Upper Tribunal Judge Blum