Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03898/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 30 September 2016
On 14 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

T G
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Capel (counsel) instructed by Irving & Co, solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS
1. I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant, because an anonymity direction was deemed necessary at first instance.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Tynan promulgated on 13 July 2016, which dismissed the Appellant's appeal on all grounds.
Background
3. The Appellant was born on [ ] and is a national of Egypt.
4. On 10/12/2015 the Secretary of State refused the Appellant's application for asylum.
The Judge's Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Tynan ("the Judge") dismissed the appeal against the Respondent's decision.
6. Grounds of appeal were lodged and on 25 August 2016 Judge Grimmett gave permission to appeal stating inter alia
"2. It is arguable that the Judge erred in making adverse credibility findings on matters which the respondent had not put in issue and that that affected the assessment of the appellant's claim to have been subjected to a sexual assault.
3. It is also arguable that the Judge may have failed to give adequate consideration to the appellant's explanation as to why she left Tanta province."
The Hearing
7. (a) Ms Capel, counsel for the appellant, moved the grounds of appeal. She produced an extract of a note prepared by counsel who appeared before the First-tier (and who framed the grounds of appeal) recording some of the questions asked in examination in chief and in cross-examination. She relied on that note of evidence to move ground one, and argued that the Judge had taken inadequate account of paragraphs 18 and 19 of the reasons for refusal letter (where the respondent accepts that the appellant has been targeted because of her faith as a Coptic Christian). The Judge finds at [18] of the decision that the appellant has not given a consistent account and rejects three incidents which are narrated in the appellant's witness statement dated, but which do not feature in substantive asylum interview
(b) Ms Capel relied on the case of RR (challenging evidence) Sri Lanka [2010] UKUT 274 (IAC) and argued that the appellant had not been given fair notice of matters which were determinative of aspects of the appeal, and so had been deprived of the opportunity to either provide comment or offer evidence. That failure, it was argued, amounts to procedural unfairness and is a material error of law which affects the decision because, it was argued, the matters considered are relevant to the question of internal relocation.
(c) The second ground of appeal is an argument that the Judge failed to take account of possible explanations for the delayed disclosure of certain parts of the appellant's evidence. Part of the appellant's account, which was rejected by the Judge, relates to a sexual assault in June 2015. Ms Capel relied on the UNHCR guidance on international protection and gender related persecution, and argued that, because no fair notice of a challenge to the appellant's credibility had been given, preparation of the appellant's case did not include either evidence or submissions driving at the difference between the appellant's initial claim and the claim which is set out in her witness statement prepared for the appeal.
(d) The third ground of appeal is a challenge to the adequacy of the reasons given by the Judge for his findings on the ability to internally relocate. It is argued that the Judge's findings did not take account of the appellant's oral evidence and amounts to a misinterpretation of the case plead by the appellant. It is argued that there is a failure to take account of the evidence of the appellant which leads to a material error of law in the findings in relation to internal relocation. It is argued that it is important that the appellant fled from large cities and the country guidance case indicates that normally a Coptic Christian would be safe in a large city.
(e) Ms Capel urged me to set the decision aside and to remit this case to the First-tier to be heard of new.
8. (a) For the respondent Mr Melvin told me that the decision does not contain any errors material or otherwise. He placed reliance on the respondent's room 24 note and explained that he has neither a file law record of the questions asked and answers given before the first-tier but does not dispute council's note of evidence from the first-tier hearing.
(b) Mr Melvin told me that it was open to the judge to consider the difference between the information before the decisionmaker when the reasons for refusal letter was written as an enhanced claim placed before the first-tier. He told me that in any event the challenge to the judge's findings are irrelevant because the respondent accepts that the appellant has been targeted in Egypt's because she is a Coptic Christian and at 2o and 21 of the reasons for refusal letter it is accepted that the appellant demonstrates a genuine subjective feeling on return to Egypt, but the respondent's position has always been that internal relocation is a viable option for the appellant.
(c) Mr Melvin told me that the judge took full account of all of evidence placed before reaching findings of fact which were open to the judge and then reaching unsustainable conclusion that the appellant can return to Egypt's because the option of internal relocation is available to her. He reminded me of the case of Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC). He urged me to dismiss the appeal and allow the decision to stand.
Analysis
9. There are conflicting authorities concerning the Judge's duties when assessing credibility. In Carcabuk and Bla (00/TH/01426) the Tribunal said that a failure to challenge credibility in the reasons for refusal letter or otherwise is not a concession that the respondent accepts as true those parts of the appellant's account which he has not challenged. In ST (Child asylum seekers) Sri Lanka [2013] UKUT 292 (IAC) it was held that a Judge should alert the advocates when considering departure from a favourable assessment of credibility made by the UKBA
10. In RR (Challenging evidence) Sri Lanka [2010] UKUT 00274 (IAC) the Tribunal said that in a case where there are obvious but not necessarily determinative difficulties in an appellant's oral evidence the Tribunal is likely to be helped considerably by independent expert evidence that supports the appellant's story. If the respondent seeks to challenge such evidence then, ideally, the challenge should be supported by evidence put before the Tribunal. If the appellant or expert chooses to give oral evidence then the respondent's cross examination should fearlessly and clearly include the suggesting to the appellant or expert that, for example, an injury was not caused in the way alleged by the appellant but by a different mechanism. If the respondent does not put its case clearly it may well be very difficult for the Tribunal to decide against an appellant who has not been given an opportunity to deal with the respondent's concern. If a party has no basis for challenging evidence so that a challenge to the evidence would appear to be abusive or foolish then that party must think very carefully before making the challenge. It will probably be fairer to abandon the point.
11. In AM (fair hearing) Sudan [2015] UKUT 00656 (IAC) it was held that fairness may require a Tribunal to canvas an issue which has not been ventilated by the parties or their representatives, in fulfilment of each party's right to a fair hearing.
12. In HA and TD [2010] CSIH 28 the court considered the extent to which an immigration judge was entitled to base his conclusion on a matter which had not been raised during the course of the hearing before him. The court said that there is no general obligation on the Tribunal to give notice to the parties during the hearing of all the matters on which it may rely in reaching its decision. The court also endorsed the view that the Tribunal was not bound, as a matter of natural justice, to point out all the inconsistencies since an applicant can generally be expected to be aware that the Tribunal will have to assess his credibility, and the consistency of the account he has given in evidence with any previous accounts contained in the documents before the Tribunal will plainly be relevant to that assessment.
13. It is quite clear from the decision that the Judge carefully analyses the evidence and makes findings of fact between [10] and [32] of the decision. The Judge takes account of each strand of evidence and takes account of the respondent's acceptance of the account given by the appellant at asylum interview. It is pars judicis for the Judge to consider each strand of evidence and view the totality of evidence to assess consistency, credibility and reliability. At [18] the Judge gives good reasons for rejecting some parts of the appellant's overall account. What I have to consider is whether or not that is procedurally fair, and if it is an error of law whether or not it is a material error.
14. As the question for me is one of fairness, the fairest way to deal with this case is to take the appellant's claim at its highest. I asked myself what the effect would be if every part of the appellant's claim had been accepted by the Judge.
15. The appellant's claim is a fear of non-state agents. The appellant claims that a fundamentalist Islamic sheik from Cairo and his followers have abused, harassed and attacked the appellant and her husband between May and July 2015. At [20] and [21] of the reasons for refusal letter the respondent accepts the appellant's account and accepts that the appellant has a genuine subjective fear of return to Egypt. Between [23] and [33] the respondent finds that it would not be unreasonable to expect the appellant to move beyond the reach of the agent of persecution by moving to a different area of Egypt.
16. In the first sentence at [32] of the decision the Judge correctly identifies the determinative issuing as
"? I have to consider how far the threat against the appellant will extend."
17. In MS (Coptic Christians) Egypt CG [2013] UKUT 611 (IAC) it was held that (i) Notwithstanding that there is inadequate state protection of Coptic Christians in Egypt, they are not at a general risk of persecution or ill-treatment contrary to Article 3, ECHR; (ii) However, on current evidence there are some areas where Coptic Christians will face a real risk of persecution or ill-treatment contrary to Article 3. In general these will be (a) areas outside the large cities; (b) where radical Islamists have a strong foothold; and (c) there have been recent attacks on Coptic Christians or their churches, businesses or properties; (iii) On the evidence before the Upper Tribunal, the following are particular risk categories in the sense that those falling within them will generally be able to show a real risk of persecution or treatment contrary to Article 3, at least in their home area (a) converts to Coptic Christianity; (b) persons who are involved in construction or reconstruction/repair of churches that have been the target for an attack or attacks; (c) those accused of proselytising where the accusation is serious and not casual; (d) those accused of being physically or emotionally involved with a Muslim woman, where the accusation is made seriously and not casually; (iv) Coptic Christian women in Egypt are not in general at real risk of persecution or ill-treatment, although they face difficulties additional to other women, in the form of sometimes being the target of disappearances, forced abduction and forced conversion; (v) However, depending on the particular circumstances of the case, Coptic Christian women in Egypt aged between 14-25 years who lack a male protector, may be at such risk; (vi) If a claimant is able to establish that in their home area they fall within one or more of the risk categories identified in (iii) (a)-(d) above or that they come from an area where the local Coptic population faces a real risk of persecution, it will not necessarily follow that they qualify as refugees or as beneficiaries of subsidiary protection or Article 3 ECHR protection. That will depend on whether they can show they would not have a viable internal relocation alternative. In such cases there will be need for a fact-specific assessment but, in general terms, resettlement in an area where Islamists are not strong would appear to be a viable option; (vii) None of the above necessarily precludes a Coptic Christian in Egypt from being able to establish a real risk of persecution or ill-treatment in the particular circumstances of their case, e.g. if such an individual has been the target of attacks because he or she is a Coptic Christian.
18. The appellant is not a convert Coptic Christianity. The appellant is not involved in the construction and repair of churches which had been attacked. The appellant does not proselytise, and has not become involved with a Muslim woman.
19. The appellant is undeniably a female Coptic Christian, but her husband remains in Egypt - so she has a male protector there. It is only the final category in the headnote to the case of MS which might apply to the appellant, because she has been the target of attacks solely because she is a Coptic Christian.
20. The appellant's agent of persecution is clearly identified as Sheik Mohammed Guniem and his followers. The weight of evidence indicates that Sheik Guniem's influence and area of interest is restricted to Cairo. He turned his attention to the appellant solely because of her religion, but when the appellant moved beyond Cairo she heard no more from him. The background information indicates that Alexandria has a large community of Coptic Christians. In her asylum interview the appellant was asked why she could not move to Alexandria, she said that she could not afford to do so.
21. It is the appellants evidence that she has family who remain in Cairo. The background information indicates that the Egyptian government generally respects freedom of movement. Egypt is a large country with a population of 84 million. The reasons for refusal letter make it clear that the respondent believes that sheik Guniem has neither interest nor influence beyond Cairo. In answer to question 50 of the asylum interview, the appellant describes Sheikh Guniem as a person who is:
"Not part of any political groups, just extremist. Not like Muslim brotherhood."
22. Taking the appellant's own evidence at its highest, the agent of persecution is a rogue Islamic extremist who is not aligned to any Islamist group.
23. The Judge considered internal relocation between [32] and [34] of the decision. There, he sets out adequate reasons and reaches conclusions which were available to him on the evidence led. His findings there can stand independently of his rejection of incidents first mentioned by the appellant in her witness statement. For the purposes of assessing materiality, I ignore the final four sentences at [32], and still find that the Judge correctly directed himself in law in considering internal relocation and reached conclusions which were open to him on the evidence presented.
24. The third ground of appeal (in reality) amounts to nothing more than a disagreement with the Judge's findings. The Judge correctly directed himself in law. There was no flaw in his fact-finding exercise in relation to internal relocation.
25. The net effect is that, taking the appellant's claim at its very highest and accepting each strand of the appellant's evidence, the appellant establishes a genuine fear because she has been targeted by a rogue Islamist due to her faith is a Coptic Christian. The appellant has had a spectacularly unpleasant time, but the remedy for the problems lies closer to home than she perhaps thinks. The appellant does not need international protection because she can safely live in a different part of Egypt. If the appellant stays away from Cairo, then her problems will be solved.
26. The Judge considers whether or not it would be unduly harsh for the appellant to relocate and, at [33] after considering the appellant's circumstances, finds that it would not be unduly harsh the appellant to seek safety in another part of Egypt and to be reunited with her husband.
27. No challenge is taken to the Judge's findings on the appellant's article 8 ECHR appeal.
28. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.
29. I therefore find that, although brief, the decision is adequate because it focuses on the central area of dispute, there is no misdirection of law, and the Judge's fact-finding exercise is sufficient. The decision does not contain a material error of law.
30. As the decision does not contain a material error of law, the decision stands and the appeal is dismissed.

CONCLUSION
31. No errors of law have been established. The Judge's decision stands.
DECISION
32. The appeal is dismissed. The decision of the First-tier Tribunal stands.

Signed Date 10 October 2016

Deputy Upper Tribunal Judge Doyle