Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05309/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 23 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

M F H
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:

For the Appellant: Mr M Bradshaw, Counsel, instructed by Paragon Law
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS

Background
1. The appellant in this case is an Iranian national born on 13 October 1999. He appealed to the First-tier Tribunal against the decision of the respondent dated 9 May 2016 to refuse to grant asylum and humanitarian protection under paragraphs 336 and 339M/339F of the Immigration Rules HC 395 as amended. In a decision and reasons promulgated on 10 November 2016 Judge of the First-tier Tribunal Bart-Stewart dismissed the appellant's appeal on asylum grounds.
2. The appellant appeals with permission on the following grounds:
(1) inconsistent findings;
(2) plausibility findings;
(3) error of fact;
(4) approach to expert report;
(5) failure to have regard to material matters - the age of the appellant.
3. Permission to appeal was granted on the basis, primarily, that the judge appeared to have paid little attention to the appellant's age. The appellant was 16 when he was interviewed by the respondent but the potential impact of the appellant's age on the appellant's evidence was not considered.
4. Mr Bradshaw accepted that at paragraph [23] of her decision Judge Bart-Stewart noted the appellant's age and the fact that he was just over 16 at the time of his screening interview. Mr Bradshaw pointed to the fact that the judge resolved part of his claim in the appellant's favour, at [24]. However the judge went on to make negative findings including implausibility findings against the appellant at [28] and [29]. The judge also criticised the appellant's vagueness without any regard to the appellant's age providing an explanation for that vagueness. Mr Bradshaw submitted that the judge had no regard to the fact that the asylum interview disclosed that this was the appellant's standard response at interview and that he was not just vague on this issue and therefore one possible explanation could have potentially have been his age and lack of maturity and it was incumbent on the judge to consider this and give reasons for not accepting the appellant's account on this ground. Mr Bradshaw submitted that his skeleton argument before the First-tier Tribunal also addressed the issue of the appellant's age and this was not considered by the judge.
5. In relation to ground 1 it was submitted that the judge made inconsistent findings; at paragraph [24] of the determination the judge gave the appellant "the benefit of the doubt", "for similar reasons" with regards to his claim that there was a raid on his house observed by his uncle (as stated in his interview) together with his explanation that it was his assumption (when he had said his screening interview) that Ahmed had been arrested, tortured and given his name. The judge had also found that nothing turned on the issue as to whether the appellant said "his friend" or his father's friend. However, at [28] the judge considered it implausible that a raid happened to have taken place on the very same day when his uncle happened to be around to witness it. Again at [29] the judge stated that there was "no explanation for him saying that Ahmed was arrested, tortured and gave his name even if his uncle had witnessed his house being raided."
6. It was Mr Bradshaw's submission that if the judge had given the appellant the benefit of the doubt on this issue at one point in the determination it was an error of law to elsewhere regard it as implausible or lacking explanation. Had the judge not believed the account of the uncle witnessing the raid or of the appellant having assumed Ahmed gave his name, he would not be expected to be given the benefit of the doubt as he was at paragraph [24]. It was submitted that the findings were inconsistent and impossible to reconcile.
7. It was further submitted that this error goes to the core of the appellant's account and credibility assessment and is therefore material as it cannot be said that it would have made no difference to the outcome.
8. In relation to ground 2 Mr Bradshaw relied on HK [2006] EWCA Civ 1037 and what was said there in relation to caution being exercised when considering an account to be implausible. It was submitted that the judge gave no reasons why she considered it implausible that a raid would have taken place the very same day when the appellant's uncle happened to be around to witness that raid and that it was implausible that his uncle could have located an agent and arranged for him to leave the country the next day. It was submitted that coincidence does not render a matter inherently implausible and the judge failed to assess the matter in context; the arrest of Ahmed being something which appeared to have happened near in time to the raid. It might be thought, the closer in time the arrest, the more likely a raid on the appellant's house taking place. None of this is considered by the judge in reaching an implausibility finding.
9. Mr Bradshaw submitted, on ground 3, that there had been no challenge by the respondent in relation to the father's death by hanging ten years before or his brother's disappearance and there was no cross-examination on this issue. There was some challenge by the Presenting Officer in submissions at the First-tier Tribunal but Mr Bradshaw pointed out at that point that there had been no cross-examination on this issue. However the judge went on to refer to the father's death as allegedly occurring which suggests disbelief.
10. Mr Bradshaw submitted in respect of ground 4 that the judge failed to adequately address the expert report before her; other than setting out the details of the report she failed to consider it further. It was submitted that at the very least the judge should have had regard to the expert's view on plausibility when making her assessment on credibility as the judge had noted that it was Dr Fatah's view that the appellant's account of his dealings with some PDKI members is similar to what happens in reality, referring to the distribution of leaflets and considering it plausible a supporter would hold some party material for the purposes of distribution. However there were no findings on this report. At the conclusion of paragraph [26] the judge quoted Dr Fatah's conclusion (at paragraph [128] of his report) that "however it is unclear whether the authorities are aware of whether Master Hakeem is the son of an executed PDKI member. It is difficult to make definitive conclusions". The judge then went on at [27] to state that in relation to the substantive claim "that is really the heart of the matter". However Mr Bradshaw submitted that that had not been disputed by the respondent. It was also incumbent on the judge to have regard and make findings in relation to the expert's view.
11. Mr Walker conceded that the judge had made inconsistent and contradictory findings at paragraph [24] and then paragraphs [28] of her decision, in appearing to give the appellant the benefit of the doubt in relation to the raid on his house and his assumption that Ahmed had been arrested, and then reaching the opposite conclusion. Mr Walker conceded that there was clear conflict in the findings at paragraphs [24] and [28] and that, given that this was central to the appellant's credibility, such an error was material. Mr Walker further conceded that the judge had made inadequate findings in relation to the expert report.
12. I was grateful for Mr Walker's indication. Taken cumulatively the issues relied on by Mr Bradshaw and summarised above are sufficient to render the decision and reasons unsafe. In particular the judge's contradictory findings in relation to credibility at paragraphs [24] and [28] are difficult to reconcile, as conceded by Mr Walker. Whilst the judge's reliance on implausibility in itself is not an error this must be considered in the context of her findings in relation to the appellant's vague evidence. The judge's failure to make adequate findings on either the relevance of the appellant's age or the comments of the expert in relation to that vagueness and claimed implausibility materially undermines her credibility assessment.
13. I am satisfied therefore that the decision of the First-tier Tribunal falls to be set aside. No findings are preserved. Under Section 12(2)(b)(i) of the Tribunals, courts and enforcement Act 2007 and Practice Statement 7.2, the nature and extent of judicial fact finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal to be heard, de novo, by any judge other than other than Judge Bart-Stewart.
Notice of Decision

The decision of the First-tier Tribunal is set aside and remitted to the First-tier Tribunal.

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

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

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee is payable and therefore I make no fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson