Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04693/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 May 2019
On 23 May 2019

Before

UPPER TRIBUNAL JUDGE LANE

Between

SR
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hodson, Elder Rahimi
For the Respondent: Mr Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant was born in 1987 and is a female citizen of Iran. She appealed to the First-tier Tribunal against the decision of the Secretary of State to refuse international protection dated 27 March 2018. The First-tier Tribunal, in a decision promulgated on 14 February 2019, dismissed her appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. As I indicated to the representatives at the initial hearing at Field House on 21 May 2019, I intend to set aside the decision of the First-tier Tribunal and return the appeal to that tribunal for the decision to be remade. I explained my reasons briefly at court and now provide my reasons in greater detail.
3. The judge accepted part of the appellant's account of past events in Iran but rejected other parts. He found that the appellant was not of political or other interest to the authorities of Iran but found that she had been 'required to be under the supervision of a colonel for a period of time, this instruction having been given to her so as to manipulate her into staying close to the colonel. I accept that under duress and in fear, she attended his apartment and engaged in sexual relations overnight. I accept that she had not given true consent and so I find she was raped during the course of the evening [57]'. The appellant had also claimed that she had been drugged prior to being raped and that the crime had been videoed by the rapist. These claims the judge did not accept as true or accurate.
4. A judge carrying out an analysis of evidence may, of course, accept part of an appellant's account whilst rejecting other parts of that account. However, a judge must provide sound reasons for doing so. The problem in the present appeal lies in the fact that the judge has rejected part of the appellant's account for reasons which are, by any objective standard, unsound and possibly irrational. For reasons which are not made clear at all, the judge found that the appellant was under the influence not of drugs but alcohol [63]. Indeed, he gives no reason at all rejecting the appellant's claim that she was drugged. He also rejects the appellant's claim that she was recorded having sex. Whilst the appellant could not remember exactly what happened during the night in question, there is little basis for the judge's assumption [59] that the appellant was, during the rape, wholly unconscious and 'unresponsive'. There is also no basis for the judge's finding that it would be 'implausible' for the rapist to have wanted to have recorded his rape of an 'unresponsive woman.' Here, the judge strays into the area of wholly unwarranted speculation. I agree with Mr Hodson, who appeared for the appellant, that the judge has, in effect, attempted to enter the mentality of the rapist in a manner which should not have constituted any part of a careful and objective analysis of the evidence. In any event, both parties acknowledge that this 'alternative scenario' was never put to the appellant in cross-examination or by the judge.
5. There are further difficulties with the decision at [65] where the judge finds that the appellant did tell her husband about the rape; that seems to be little, if any, basis for making such a finding. I am also satisfied that the judge did not address the background material relating to corruption in the intelligence services in Iran when he concluded at [63] that any video of the rape would have caused the rapist colonel significant problems with the Iranian authorities had it come into their hands. However, my primary reason for setting aside the decision lies in the judge's failure to provide a coherent and rational explanation for accepting part of the appellant's account of the rape whilst rejecting the remainder of that account.
6. This appeal has already been remitted more than once to the First-tier Tribunal and it is unfortunate that, given the nature of the error of law, there will need to be a new fact-finding exercise in that Tribunal.
Notice of Decision
I set aside the decision of the First-tier Tribunal promulgated on 14 February 2019. None of the findings of fact shall stand. The appeal is returned to the First-tier Tribunal for that Tribunal to remake the decision at or following a hearing.

Signed Date 21 MAY 2019

Upper Tribunal Judge Lane

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.