Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04083/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2016
On 16 November 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

KAMRAN AZAM
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Nizami, Counsel, instructed by Wick & Co Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Pakistan who made an application for asylum or other protection under paragraph 336 of the Immigration Rules. That application was refused by the respondent in a detailed refusal letter of 4 December 2015.
2. The appellant sought to appeal against that decision, which appeal came before First-tier Tribunal Judge Traynor on 28 June 2016. The Judge found the asylum claim to be essentially a fabrication and the appeal was dismissed in all aspects.
3. Challenge is made to that decision on a number of grounds, permission to raise the challenge having been granted on one of those grounds, namely the standard and burden of proof. Thus the matter comes before me to determine these issues.
4. By way of context the appellant claims that he has acquired a significant and adverse profile in Pakistan by reason of his political activities there and in the United Kingdom. The precise event giving rise to the claim for asylum is said to have occurred between 6 May 2015, when he left the United Kingdom, to 1 July 2015 when he returned. It is his case that he was involved in a significant public meeting in Pakistan on 20 June 2015 when Rights for Kashmir were demanded and also the release of a writer. It is his case that the police subsequently raided his home looking for him and that a warrant for his arrest has been issued. Reliance was placed upon a First Information Report and an arrest warrant in that context.
5. The respondent made particular enquiries of the Pakistani police authorities in connection with the authenticity of the FIR and came to the conclusions, for the reasons set out in a document verification report, that it was not genuine. The police indeed had confirmed that that document was not genuine and that the details were not held in that police station. It was the case for the appellant in reply that corruption is rife within the police service and that the police had a motive to give wrong information to the respondent because they were anxious not to alert the appellant but would arrest him on return.
6. The decision letter of 4 December 2015 is detailed in its response to the claim made by appellant dealing in some detail with his interview, the letters, the newspapers, the photographs and in particular the warrant and FIR. The suggestion of a conspiracy by the police to deceive the respondent was not accepted.
7. At the hearing the respondent was not represented by a Presenting Officer. Clearly that posed some difficulty for the Judge but that matter was specifically dealt with at paragraph 6 of the determination. The Judge had been asked to proceed in the absence of such a Presenting Officer in the light of what was set out in the decision letter of 4 December 2015. The Judge was satisfied that he could fairly and justly determine the issues without the presence of such a Presenting Officer and informed the appellant and the appellant's representative accordingly.
8. There are in effect three substantive challenges which are made to the determination.
9. The first challenge is that the wrong standard and burden of proof was applied. That was set out in paragraph 9 as being "substantial grounds for believing that the appellant meets the requirements of the Qualification Regulations".
10. Miss Nizami, who represents the appellant before me, submitted that it was an incomplete phrase from the Qualification Regulations the full context being "substantial grounds for believing that the appellant would face a real risk of serious harm". She submitted that that related to humanitarian protection and that the lower standard of reasonable degree of likelihood should be applied to matters of asylum. It was her submission that the standard and burden of proof was set too high.
11. Mr Melvin in response, however, draws my attention to paragraphs 60 and 61 of the determination. He asks me to find that the Judge has correctly set out both tests, namely whether the appellant faces a real risk of serious harm if returned and also under the Directive for Humanitarian Protection substantial grounds for believing that he will face a real risk of serious harm in his country of origin. I am invited to find that in practical terms there has been no serious departure from the burden and standard of proof.
12. I would agree. In any event given the finding that the Judge has made that the claim for asylum based upon that particular meeting is a fabrication it is difficult to imagine that, even applying a lower standard of proof to the facts, there would have been any material difference of outcome.
13. The second challenge made is the approach which the Judge is said to have taken to the evidence of Mr Gul Zaman. It is said that he attended the hearing but that his statement at page 16 of the bundle was presented and should have been accepted by the Judge in the light of what the Judge had to say.
14. It is contended in ground 2 of the appellant's grounds that when dealing with the absence of the Presenting Officer the Judge had stated to the appellant and to his representatives that there would be no need to call the statements in the circumstances and would be taken as being read. Such a statement, it is said, stands in contrast to the comments made in paragraph 55 of the determination which were as follows:
"I note the appellant did provide a witness statement from Gul Zaman which is contained at page 16 of the appeal bundle and I was informed that this person may give evidence. In the event, he was not called and his evidence had not been tested in anyway. As a consequence I give no weight to the witness statement of Mr Zaman in which he contends that the appellant is at risk on return to Pakistan on account of his alleged involvement on behalf of UKPLNP both in Pakistan and in the United Kingdom."
15. It is said that it is fundamentally unfair for the Judge to have indicated that he would have accepted the statement on its face and then criticise the maker of the statement for not giving evidence.
16. It seems to me, however, it is a matter for concern that no statement to that effect has been prepared by Counsel who represented the appellant before the Judge. A reading of the determination at paragraphs 6 and 55 does not give that interpretation of what was said by the Judge. On the basis of those two documents it would seem that the Judge has simply indicated that in the absence of a Presenting Officer he could fairly deal with matters and that there had been some indication given that Mr Zaman would give evidence but in the event was not called so that his evidence was not tested.
17. Clearly it would be a matter of concern if a Judge was to indicate that the statement would be accepted on its face and then subsequently criticise the maker of the statement for not giving evidence. It is surprising, however, that on this important matter, that the detail of what precisely was said to the parties has not been properly set out in the statement, which could then be presented if need be to the Judge for further comment.
18. The statement of Mr Zaman is in any event extremely brief and speaks only in the most general terms of his political involvement with the appellant. So far as the key issue was to the FIR and the arrest warrant what is said is as follows:
"I am aware that there are cases filed against him in Pakistan occupied Jamu Kashmir which makes his return there impossible. I understand that the life of such comrades is made difficult upon return and that they are harassed and intimidated by the state police and Pakistani secret agencies."
19. At no stage does he give any indication as to how he became aware of these matters, which clearly must go to the weight to his evidence in any event. Clearly if the Judge was led to understand that the witness would be speaking as to his statement the absence of his doing so is significant.
20. In the absence of clear and direct evidence as to precisely what the Judge said to the representatives I place very little weight upon that challenge.
21. The third challenge is essentially that the Judge reached adverse conclusions without having first considered al the evidence as a whole. It is said that he did not fully engage with the newspaper articles that were presented, particularly in their original form, nor with the photographs, nor indeed with the circumstances overall. It is said that the Judge unreasonably concentrated upon the issue of the genuineness of the FIR and arrest warrant and allowed the findings on that matter to taint the other findings.
22. For my part I find no error of approach in the practicalities of this matter. The very focus of the case was the allegation that as a result of a particular meeting in Pakistan FIR and arrests warrants had been issued. The matter was considered in considerable details at paragraphs 49 to 53. The Judge did not find the suggestion put by the appellant that there were corrupt officials who did not want to acknowledge that they issued an FIR because they somehow wished to attract the appellant back to Pakistan to seek retribution against him. The appellant relies upon those documents claimed to have been received from a Pakistani lawyer. Perhaps unusually in this case the respondent had been proactive in making enquiries about those documents and had received information that they were false. Reasons are given for that and a document verification report is relied upon.
23. The Judge for sustainable reasons has found that the documents were false, not at the instigation of the police but because of the attempt to deceive by the appellant. The Judge found therefore that his credibility is wholly and fundamentally damaged by the product of false documents. It seems to me to be entirely reasonable in the circumstances of this case.
24. It cannot be said that the Judge simply ignored the other evidence, it is clear, particularly from paragraphs 54 and 55, that other evidence particularly newspaper articles and photographs were considered as was indeed the statement of Gul Zaman. For sustainable reasons the Judge did not find that evidence to be of any assistance to the appellant in establishing the credibility of his case.
25. The conclusion of the Judge that the appellant has sought to provide a false documents in support of a wholly contrived and fabricated application for asylum was properly open to be made. The Judge found that the allegations made against the Pakistan police force were unfounded and fabricated. In the circumstances it comes as no surprise that the appeal was dismissed.
26 I have looked at the three challenges both individually and collectively and can find no material error of law. In those circumstances the appeal of the appellant against the decision of the First-tier Tribunal is dismissed. The decision shall stand, that being one in which the appellant's claim for asylum is dismissed as also his claim for wider humanitarian or human rights protection.
No anonymity direction is made.

Signed Date 16 November 2016

Upper Tribunal Judge King TD