Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04295/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 February 2017
On 27 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ESHUN

Between

MISS HENNA KYAW AYE
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms B Asanovic, Counsel
For the Respondent: Mr P Armstrong, HOPO

DECISION AND REASONS
1. The appellant is a citizen of Burma born on 15 September 1990. She entered the United Kingdom on 28 July 2015 with leave to remain as a student until 9 April 2017. She contacted the respondent to claim asylum on or around 9 September 2015 and attended a screening interview on 2 November 2015. The respondent refused her claim in a letter dated 15 April 2016. The appellant appealed against the decision to an Immigration Judge. Her appeal was heard by FtTJ Cameron on 16 September 2016 and was dismissed in a determination promulgated on 10 October 2016. On 13 January 2017 Upper Tribunal Judge Allen granted permission to the appellant to appeal to the Upper Tribunal stating that the matters raised in the grounds identify arguable challenges to the judge’s decision.
2. The appellant’s grounds of appeal identify the facts relied upon by her. She is a Muslim. Members of her family and community were murdered by the Burmese authorities in 2013, and refugees from the unrest now reside in refugee camps. The appellant engaged in humanitarian work with others in one of these camps on two occasions (Chan Aye Thar Pliekhtila Camp), and further sought to collect the experiences of the refugees to evidence them to international organisations to protest their treatment. After her departure to the United Kingdom one of her fellow activists was arrested and her participation was discovered. The Burmese authorities visited her parents on 17 August 2015 with an arrest warrant. The appellant’s parents informed her of this occurrence, and, after seeking legal advice, she contacted the Home Office to claim asylum. She was interviewed in respect of her claim which was refused by the respondent in a letter dated 15 April 2016.
3. The appellant’s submissions made to the judge were that the appellant had participated in activities to document the persecution Muslims have suffered in Burma. This has brought her in turn to the adverse attention of the authorities. It was submitted that the appellant gave a credible account in light of her evidence assessed in relation to the objective evidence. It was submitted that the appellant has been identified as a supporter of anti-government activities, that the Burmese authorities continue to have an interest in her whereabouts, and that she will be at risk as a person who will be returning from London having claimed asylum. In light of the background evidence, the appellant remains a legitimate target for arrest and interrogation, which in turn brings with it a very real risk of ill-treatment. It was submitted that because of her fear of the government the appellant cannot reasonably relocate internally.
4. From paragraphs [102] to [138], the judge assessed the appellant’s account of her activities in Burma and found it not to be credible.
5. The grounds of appeal submitted on behalf of the appellant were highlighted and underlined as follows:
“The Immigration Judge has failed to properly record the evidence he heard in relation to the appellant’s activities in Burma, and further has failed to put concerns which founded his negative credibility findings to the appellant. It is thus submitted that his credibility findings are flawed”.
6. The grounds then went on to challenge the judge’s findings on the serving of the arrest warrant and its arrival in the United Kingdom and these are found at grounds 6 to 11. Paragraph 12 of the grounds challenged the judge’s findings on the appellant’s visits to the refugee camp.
7. Ms Asanovic raised a preliminary issue. In respect of the heading of the grounds which had said “The Immigration Judge has failed to properly record the evidence he heard ...”, Ms Asanovic sought to rely on a witness statement of Geraldine Peterson, Counsel, who had appeared on behalf of the appellant at the hearing below. Attached to Geraldine Peterson’s witness statement was her handwritten notes of the Record of Proceedings and a typewritten transcript of an extract from the handwritten notes of evidence she had taken. Ms Asanovic sought to use these documents to argue that the judge failed to properly record the appellant’s evidence. There was no advance warning that she was going to do this to enable the court to ask the judge to submit a typed copy of his Record of Proceedings and also to request the HOPO below to submit his.
8. Ms Asanovic argued that it can be inferred from the grounds which were drafted by Miss Peterson that in failing to record the evidence properly, Miss Peterson was referring to her own Record of Proceedings as a means of making that argument. I disagree. There was no mention in the grounds that Miss Peterson was referring to her own Record of Proceedings in support of the argument that the judge failed to properly record the evidence. The grounds made no comparison of Counsel’s Record of Proceedings with the judge’s and no assertion in the grounds that the judge’s Record of Proceedings were inconsistent or inaccurate set against Miss Peterson’s Record of Proceedings. Accordingly, I refused to admit Miss Peterson’s witness statement, her Record of Proceedings and the typed extract from the Record of Proceedings.
9. The issues raised in paragraphs 6 to 11 of the grounds were in respect of the serving of the arrest warrant and its arrival in the United Kingdom. It is said that at [25] the judge records the appellant’s evidence about a visit to her parents’ home on 17 August 2015 with a warrant for her arrest. At [126] he gives an analysis of this evidence, from which he makes a negative credibility finding. He states that the appellant had “changed her answer with regard to what the authorities told her mother about why the appellant was sought”. The grounds argued that the appellant did not change her evidence when asked what was said to her mother when the Burmese authorities served the arrest warrant, and the judge’s record of her evidence on this issue was incorrect.
10. The grounds said that the appellant’s witness made a statement in relation to what she was told by the appellant’s mother about the adverse interest of the Burmese authorities. It is highly relevant that this witness was not cross-examined or asked any questions by the judge himself in relation to her evidence. The witness had said in her statement that the appellant’s mother told her the Burmese authorities had not said why they sought to arrest the appellant, recorded by the judge at [130] and [134]. At [138] the judge made an adverse credibility finding against the appellant because the judge found this contradicted the appellant’s evidence that her mother told her why the Burmese authorities wished to question her. It was submitted that this was not an internal contradiction in the appellant’s evidence. There could be a number of reasons why the appellant’s mother was not forthcoming with the witness about the reasons for the adverse interest of the Burmese authorities. In fact, the witness did not profess in her statement to know the precise reasons for the visits of the Burmese authorities to the appellant’s parents’ home. This matter should have been put to the appellant and/or to her witness. Without such enquiry, the judge’s negative credibility findings on this evidence were speculative and unfair.
11. Having considered the evidence, and the grounds, I found no error of law in the judge’s finding at [126]. The judge recorded at [24] that the appellant said there were five of them including herself who were undertaking visits to the Chan Aye Thar Meik Tila Refugee Camp. She has not had any contact with them after one of their number was arrested on 15 August 2015. As a result of the arrest the police now had their records. At [25] the judge recorded that the appellant said she was aware of this after speaking to her mother as they gave her mother an arrest warrant and told her mum that she was a member of the group. They had not said anything about the records, just that she was involved in the camp. The appellant then stated that when they had given the arrest warrant to her mum they said that Musa Patel had been arrested and that he had all the documents.
12. At [126] the judge said he took note that the appellant stated that all of the accounts were left with her friend Patel and that it was as a result of his arrest in August 2015 that her involvement came to light. She had indicated that the authorities went to her mother’s house looking for her and that they left her mother with an arrest warrant dated 17 August 2015. The appellant during her oral evidence initially indicated that her mother had not been told about the documents but then changed her answer to indicate the authorities had told her mother that they had been found when Patel was arrested.
13. I find no error of law in paragraph [25] of the judge’s analysis of the appellant’s evidence. The use of the word “then” in the third sentence at [25] indicates that the appellant had changed her evidence.
14. The next point taken in the grounds was in respect of what the appellant’s witness said in her statement. The witness was Ms Patel. Her statement is dated 16 September 2016. There was no cross-examination of Ms Patel [87]. At paragraph 9 of the grounds it was stated that Ms Patel said the appellant’s mother told her the Burmese authorities had not said why they sought to arrest the appellant, recorded by the FtTJ at [130, 134]. At [138] the FtTJ has made an adverse credibility finding against the appellant because the FtTJ finds this contradicts the appellant’s evidence that her mother told her why the Burmese authorities wished to question her. It was argued, and I accept, that this was not an internal contradiction in the appellant’s evidence; there could be a number of reasons why the appellant’s mother was not forthcoming with the witness about the reasons for the adverse interest of the Burmese authorities. I accept that the witness did not profess in her statement to know the precise reasons for the visit of the Burmese authorities to the appellant’s parents’ home. This matter should have been put to the appellant and/or to her witness. Without such enquiry the FtTJ’s negative credibility findings on this evidence were speculative and unfair.
15. The next issue taken in the grounds was the judge’s finding at [132] that the appellant’s witness visited the appellant’s mother in Burma after the appellant claimed asylum, and made a negative credibility finding in respect of the arrest warrant itself because he considered the appellant’s witness should have been given the arrest warrant to bring to the appellant in the United Kingdom. It was argued that the judge failed to consider that at the time of the visit of the witness, the respondent had not disputed the existence of the arrest warrant; that issue arose some months later with the refusal letter. There could have been a number of reasons why the appellant’s mother did not entrust the document to the witness at that time, which should have been put to the appellant.
16. Whilst I accept that there could have been a number of reasons why the appellant’s mother did not entrust the document to the witness at that time, I accept with Mr Armstrong’s submission in the Rule 24 response that the judge was perfectly entitled to take into account the appellant’s failure to corroborate her initial asylum claim when such evidence was reasonably available. I find that Mr Armstrong was entitled to rely on the decision in ST [2004] UKIAT 00119, paragraph 15 of which states:
“The fact that corroboration is not required does not mean that an Adjudicator is required to leave out of account the absence of documentary evidence which might reasonably be expected. An appeal must be determined on the basis of the evidence produced but the weight to be attached to oral evidence may be affected by a failure to produce other evidence in support. The Adjudicator was entitled to comment that it would not have been difficult for the appellant to provide a death certificate concerning his brother or some other evidence to support his contention that he had received hospital treatment ...”.
17. In this case the appellant attended a screening interview on 7 November 2015 and an asylum interview on 11 February 2016. She claimed an arrest warrant had been issued for her in Burma on 17 August 2015 when the authorities visited her parents’ home. Her cousin, Ms Patel, had visited the appellant’s mother in Burma on 15 February 2016. The appellant’s mother did not give Ms Patel the arrest warrant when she, Ms Patel, was returning to the UK with her family after their visit to Burma. The arrest warrant had been given to the appellant’s brother who had taken it out of the country in July 2016 to send to the appellant by DHL. The respondent’s refusal letter of 15 April 2016 made reference to the fact that the appellant had not even seen the arrest warrant, had no evidence to prove that it existed and was not even sure of the contents which severely undermined the credibility of her claim to have an arrest warrant issued against her. I find that it is reasonable to expect that in light of what the respondent said about the existence of the arrest warrant, the appellant would ask her mother to send the arrest warrant to her immediately so that she could present it to the Home Office. Her cousin was in Burma. She had visited her mother and I find that it would have been possible, if not safer, for her mother to give it to the cousin to bring it directly to the appellant in the UK. We have no explanation from the appellant’s mother or the cousin as to why this circuitous route was used in forwarding the arrest warrant to the appellant. In the circumstances, I find that the judge’s findings at [132] and [133] disclose no error of law.
18. The next issue taken in the grounds was that the judge at [117] found it credible that the appellant had visited the refugee camp. However, he begins his negative credibility findings with regard to the appellant’s collection of evidence about the persecution suffered by the refugees stating at [113] that a photograph shows a man with a book taking notes of donations and “it is difficult to understand how the appellant could be giving a donation and also listening to someone’s story without that person overhearing them”. He repeats this concern at [124]. However, it was the appellant’s evidence that the person recording the donations was a member of her own party, not the camp authorities, as he records at [49]. It was argued that the appellant gave consistent evidence about the presence of the camp authorities watching the emotional encounters of the refugees with their beneficiaries, understandable in this context, without concerning themselves with the content of what was said. It was submitted that the judge’s negative credibility findings about this evidence were predicated on an error of fact, and that these events were at the core of her account, it was a material error of law.
19. Ms Asanovic said that the photograph in question was at C15 of the respondent’s bundle. She submitted that the evidence of this man’s identity was recorded at [49], namely, that this was the man who worked with Mr Myint Htwe and it was this man who recorded the donations they gave. Mr Htwe is a humanitarian lawyer who was allowed into the camp. The man did not work for the authorities as wrongly concluded by the judge. I accept that the judge may have misunderstood who the man was. However, I find that at [112] the judge made a valid point when he stated
“The appellant has indicated that the reason for being allowed into the camp was so that they could give donations and that the only photographs that could be taken were when they were in the common areas. It is unclear therefore how the picture at the bottom of C14 was able to be taken if the appellant was in the front of the hut”.
This point was not addressed in the grounds.
20. I note that the judge made numerous adverse credibility findings. Only three of them have been challenged, and I have addressed each one accordingly. On the totality of the evidence and the findings made by the judge, I find that the errors identified in the grounds do not materially undermine the judge’s overall findings.
21. Accordingly, the judge’s decision dismissing the appellant’s appeal shall stand.
No anonymity direction is made.

Signed Date: 23 March 2017

Deputy Upper Tribunal Judge Eshun