Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03853/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 8th December 2016
On 15th December 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

MR SAJID KHAN
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Miss A Faryl (instructed by Whitefield Solicitors Ltd)
For the Respondent: Mr A McVeety (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal, with permission, by the Appellant in relation to a Decision and Reasons of the First-tier Tribunal (Judge Amin) promulgated on 26th February 2016 by which she dismissed the Appellant's appeal against the Secretary of State's decision to refuse his protection claim.

2. The Appellant claimed to be at risk in his home country, Pakistan, because he claimed to be a member of the Awami National party (ANP) and in particular he fears the Muhadia Komi Movement (MQM), the Taliban and the state.

3. Permission to appeal was granted by Upper Tribunal Judge Southern. He found that largely, the grounds were no more than an expression of disagreement with the clearly reasoned findings of fact that it was for the Judge to make and, as he had heard oral evidence, he was best placed to do so. However he noted that the grounds complained that the Judge simply ignored one important item of evidence that, if accepted, was capable of supporting the Appellant's claim, that being the Rule 35 report of Dr Yousafz that contained the observation: "his injuries appear consistent with his account of being tortured in the context of his country's political turmoil". Judge Southern said that it may be that the comprehensively adverse credibility assessment recorded by the Judge is such as to represent a more than adequate foil to that observation but it is arguable that the Appellant was entitled to know what the Judge made of that evidence and that it was not simply overlooked in the rejection of the Appellant's claim.

4. The report referred to is not a medical report obtained by the Appellant but a Rule 35 report said to be a "Report of Special Illness or Condition (including torture claims) obtained when he was detained in Harmondsworth detention centre. The report is very brief and refers to Mr Khan having alleged that he had two episodes of attempted murder, the first being on 21 April 2009 and the second on 22 March 2010. He did not know who the attackers were but suspected that they belonged to MQM in the first attempt and the Taliban in the second. He said that he was attacked because he belonged to an opposing political party, Pukhtoon Student Federation, student wing. In the first attack he was fired upon and he had a bullet wound to his left flank with an entry and exit wound. He was said to have a medical report to confirm that as well (not in the bundle before the First-tier Tribunal). The second attack was also a gunshot, with the bullet passing through his right elbow. When he tried to run away his left foot hit a metal rod and sustained an injury in the process. He has a scar on his right foot medially. The report then recites further matters claimed by the Appellant, namely that he had 3 FIRs (First Investigation Reports) lodged against him to put psychological pressure on him from the opposing political parties. He said his brother was also shot and murdered by the opposing political party. He said that he had close family members who were injured in other politically motivated attacks. He said that he suffered from mental stress due to the scars of previous injuries and his sleep is disturbed due to it. He said that he suffers from nightmares and anxiety episodes. The final sentence of the brief report states:-"his injuries appear consistent with his account of being tortured in the context of his country's political turmoil." On the reverse of that report is a body map indicating the bullet wounds referred to. That is the evidence not dealt with by the Judge in her Decision and Reasons. However, the Judge did give very careful and detailed consideration to each aspect of the Appellant's claims and she indicated at the outset of her findings that she had concluded that there were material inconsistencies in the Appellant's evidence which undermined his core asylum claim and damaged his credibility. She noted that the Appellant claims to be a key player in his party and that he was active and held high positions in that party. In the light of that the Judge said she would have expected some reasonable level of consistency in his evidence.

5. The Judge then said at paragraph 53 that on the contrary, the Appellant, for example stated in his screening interview that he was detained in Pakistan for 4 to 5 days because of his political activities. However, elsewhere the Appellant stated he had only ever been detained by the immigration authorities in the UK which she found to be a significant omission and inconsistency which the Appellant had failed to explain.

6. The Judge noted that the Appellant's account in any event was not supported by his documentary evidence. In his screening interview he said that the ANP believed that the MQM, Taliban or the Pakistani authorities were behind the two attacks in April 2009 and March 2010. He relied on a newspaper article dated 22 April 2009 and updated in November 2010 in support of that evidence. However, the Judge noted from that article that it was said that a rival student organisation was behind the attack and that they knew who the attackers were and had lodged cases against them. This was in direct contradiction to the Appellant's evidence that it was the MQM, Taliban or Pakistani authorities.

7. The Judge further noted that the newspaper article did not support the Appellant's belief that his political opinion led to him having a valid fear on return to Pakistan. She noted that the newspaper article and an article from Dawn.com referred to 4 motorcycles involved in the attack. The Appellant's evidence was that there were only 3. The same article noted that 1 person was killed and around 8 to 9 students had bullet injuries. The Appellant in his asylum interview said that 4 persons in total, including him, were injured. The Appellant claimed there was 1 witness to the attack in 2009 but the same newspaper reported there were more witnesses.

8. The Judge noted that the Appellant had not mentioned at the first reasonable opportunity that there was a court warrant outstanding against him for his arrest in Pakistan, having failed to mention this in his first two interviews. She said that there was no reasonable explanation offered for that omission.

9. She then referred to the second attack in 2010 and noted that the Appellant initially named the people who attacked him. However, in interview he claimed he did not know who they were. He also failed to mention the March 2010 attack in his screening interview.

10. The Appellant claimed in his asylum interview that after the second attack he reduced his political activities on the advice of his party. However, he was unable to explain why, if that were the case, FIRs were then lodged against him.

11. She noted that the Appellant's evidence as to who had lodged the FIRs was inconsistent.

12. The Judge considered the Appellant's evidence that he was wanted for murder and yet, despite that, the Appellant returned to Pakistan in July 2012, apparently because his brother had been killed and he stayed there for one month. The Judge found that behaviour did not demonstrate the Appellant to be in fear of the authorities as claimed. It also was evidence that the Pakistani authorities did not have any adverse interest in him because neither the FIRs nor the arrest warrants were executed against him when he returned.

13. The Judge also noted that the evidence that the Appellant returned for one month was also in stark contrast to his claim that MQM, the Taliban and the authorities were all pursuing him.

14. With regard to his return to Pakistan in 2012 the Judge also noted that he had given inconsistent evidence as to the reason for that. On one occasion he said that he wanted to attend his brother's funeral but later said that when he arrived in Pakistan the funeral had already taken place and he stayed for one month at the party headquarters. However, none of the documentation from the party headquarters made any mention of that.

15. The Judge did not accept his evidence that his brother was killed as claimed as there was no evidence put before her to show the relationship between the dead man and the Appellant and the death certificate itself contained many omissions.

16. The Judge did not accept the Appellant to be a high profile person because the documentary evidence supplied by him made no reference to any of his high-profile roles. Similarly there was no reference in the material produced to his brother having any high-profile position either at a national or a local level.

17. The Judge noted that notwithstanding the three FIRs including for murder, the Appellant was able to enter and leave Pakistan without any incident.

18. Finally the Judge indicated that she accepted the Appellant to be a low level supporter but was not satisfied even on the low standard of proof that he held a high profile role or that the authorities or indeed anyone else was interested in him. She noted some very low-key sur place activities which she found would not place him at risk on return.

19. The Judge, it is true, did not deal with the Rule 35 report. However, whilst it confirmed that he has received bullet wounds that does not establish that he was deliberately targeted in attacks or that he would be at risk on return and the Judge's findings in that regard are unaffected by those conclusions. The report makes no attempt to date the injuries and simply reports the Appellant's claims. The report fails to take into account other explanations in a country like Pakistan for the Appellant having received bullet wounds and indeed it recites his evidence which, as the Judge indicated had been inconsistent throughout.

20. Accordingly, whilst it is arguably an error of law to fail to take into account material evidence, the evidence I find was not material. The report falls a long way short of corroborating the Appellant's claims save that he has at some point received gunshot wounds. The other numerous adverse credibility findings are all properly reasoned on the basis of the evidence and no reasonable Judge, even taking into account that Rule 35 report, would have reached another conclusion. Accordingly, the First-tier Tribunal's Decision and Reasons contains no material error of law and I uphold it.

21. The Appellant's appeal to the Upper Tribunal is dismissed.

22. There was no application for an anonymity direction and I see no justification for making one.

Signed Date 14th December 2016

Upper Tribunal Judge Martin