Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05625/2016

THE IMMIGRATION ACTS

Heard at Bradford
On 11th April 2017
Decision and Reasons Promulgated

On 20th April 2017

Before

deputy upper Tribunal JUDGE KELLY

Between

MRS SATWANT KAUR
(anonymity not directed)
Appellant

and

the secretary of state for the home department
Respondent
Representation:

For the Appellant: Ms Patel, Counsel instructed by Legal Justice Solicitors
For the Respondent: Mr , Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the appellant against the decision of First-tier Tribunal Moxon who, in a decision promulgated on the 6th January 2017, dismissed her appeal against refusal of her Protection Claim.
2. The essence of the appellant’s Protection Claim was that she is an Afghan Sikh who has experienced ill-treatment at the hands of members of the majority Muslim community in her country of origin due to her religion. Judge Moxon did not believe that she was an Afghan national and found that her account of ill-treatment was not credible.
3. At the outset of her submissions, Ms Patel helpfully summarised her criticism of the judge’s approach under four headings; namely, nationality, the testimony of the appellant’s husband, the difficulties that the appellant had with the interpreter in her Asylum Interview and at the hearing, and the country expert report of Jawad Hassan and Dr Qaazidada. I will consider these in turn.
Finding on nationality and general credibility
4. Ms Patel firstly argued that having not upheld the appellant’s claim to be an Afghan national, it was incumbent upon the Tribunal to make a positive finding concerning her true nationality. I reject that submission. Albeit to a low standard, the burden of substantiating her claim that she was an Afghan national rested firmly upon the appellant. The role of the Tribunal was to adjudicate upon that claim: nothing more and nothing less. It was not therefore under any obligation to make a finding that the appellant was a national of some other country. Indeed, it would have been an error of law for it to do so save upon the basis of clear evidence that was capable of supporting such a finding. Given that the respondent had not positively asserted or sought to prove an alternative nationality, the Tribunal was right to avoid making positive findings of this kind. Neither was it incumbent upon the Tribunal to specify the sources of information from which the appellant may have learnt such facts as she knew about Afghanistan. By contrast with a country such as North Korea, the Tribunal was entitled to take judicial notice of the fact that information concerning Afghanistan is widely available and is regularly reported upon in the media. The remaining written grounds concerning this issue are, with all due respect to Ms Patel, simply an attempt to re-argue it.
The testimony of the appellant’s husband
5. Ms Patel argued that the judge failed to make clear findings as to whether he accepted or rejected the testimony of the appellant’s husband (Mr Subir Singh) and that he in any event failed to take account of the fact that his testimony provided material support for the appellant’s claim. However, that argument is not borne out by a careful reading of the decision as a whole. The judge clearly recorded the extent to which the evidence of Subir Singh provided support for the appellant’s claim at paragraphs 47 and 65 of his decision. He also noted a number of internal inconsistencies in his account of events in Afghanistan at paragraph 59. He plainly regarded those inconsistencies as damaging to Subir Singh’s credibility. I therefore conclude that the judge did not make an error of law in this regard.
Difficulties of interpretation
6. Ms Patel argued that the judge failed to factor into his factual findings the appellant’s claimed communication difficulties that she had experienced in both her Asylum Interview and at the hearing. However, both these matters were addressed at length by the judge in his decision. Thus, at paragraph 52, he correctly observed that the appellant had been represented throughout the course of the investigation into her claim but had nevertheless not sought to clarify or correct the record of her Asylum Interview by way of a letter addressed to the Home Office shortly after receipt of that record. It was thus reasonably open to the Tribunal to conclude that such representations would have been made at that time had there been any genuine difficulties arising from the translation of the questions and replies in that interview. As to the circumstances surrounding the apparent interpreter difficulties arising at the hearing, these are fully recorded by the judge at paragraph 6 of his decision. Given those circumstances, together with the appellant’s attempted interference in the process of translating her husband’s oral testimony at the hearing which the judge recorded at paragraph 7 of his decision, it was entirely open to him to conclude that any supposed difficulties in translation had been “exaggerated for effect” [paragraph 62].
The expert report
7. Ms Patel’s criticism of the judge’s approach to the expert report is based upon what he said at paragraph 54 of his decision -
Neither authors of the report attended the hearing to give live evidence. Had they done so I would have wished to ask them for further particulars as to their purported expertise, especially in relation to what qualifications they have to undertake linguistic assessments. I would have asked how they had assessed the source of the Appellant’s accents and whether such an accent can be fabricated, and if so whether they would have been able to notice and how. I would have sought to ask why I have only been given details of 11 questions and answers in the report despite a 70 minute assessment. I would have asked how they have concluded what the Appellant “must” have said in asylum interview and seek an explanation as to whether this was clarified with the Appellant herself. I would have asked how the aforementioned statistic had been calculated and specifically how the authors have been able to determine which spelling mistakes are assignable to interpreters rather than any other reason. I would have asked for further details in relation to the weight given to their reports in other cases and whether their reports have ever been considered by a court or Tribunal senior to the First-tier Tribunal. I would have asked if they had ever determined that someone is not from the country asserted. I would have asked Mr Zadeh whether he has ever been to Afghanistan.
8. With regard to the judge’s observation that neither author had been called to give “live evidence”, Ms Patel pointed out that it is not customary for experts to give oral testimony in proceedings before the First-tier Tribunal. She therefore argued that fairness required the judge to give the experts an opportunity to address his concerns by adjourning the hearing so that they could either prepare a further report or attend the hearing for that purpose. I reject that argument. As I noted at paragraph 4 above, the burden of substantiating a claim for asylum rests solely upon an appellant. It was thus a matter for this appellant, in consultation with her advisors, to decide how best this might be achieved. Whilst a decision not to call an expert to give oral testimony may well be sensible in terms of the cost to the public purse of doing so, such pragmatism renders it all the more necessary that professional advisors fulfil their obligation of seeking written clarification of the expert’s draft report and, where necessary, inviting its author(s) to address any outstanding issues in advance of the hearing. To the extent that this was not done in this appeal, it was both reasonable and appropriate for the judge to draw attention to the gaps that he had identified in their report by way of his reasons for not attaching weight to it. Whilst fairness does of course require an appellant to have an opportunity to address issues concerning his or her credibility, this does not extend to the opinion of a professional witness upon whom the appellant relies as support for his or her claim. I therefore conclude that the Tribunal did not make an error of law in its approach to the expert report.
Notice of Decision
9. The appeal is dismissed.
Anonymity is not directed

Signed Date 18th April 2018

Judge Kelly

Deputy Judge of the Upper Tribunal