Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05654/2017

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 19 December 2017
On 11 January 2018

Before

UPPER TRIBUNAL JUDGE SMITH

Between

S H
(ANONYMITY DIRECTION MADE)
Appellant

And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Moriarty, Counsel instructed by Luqmani Thompson & Partners solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was not made by the First-tier Tribunal. As a protection claim, it is appropriate that the direction is continued. 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 his family. This direction applies amongst others to all parties. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS

Background

1. The Appellant appeals against a decision of First-Tier Tribunal Judge Hendry promulgated on 9 August 2017 ("the Decision") dismissing the Appellant's appeal against the Secretary of State's decision dated 30 May 2017 refusing his protection and human rights claim.

2. The Appellant is a national of Bangladesh. He came to the UK as a student in 2011 with leave until 31 May 2014. Thereafter he overstayed. He claimed asylum on 1 December 2016.

3. The Appellant's protection claim is based on his sexuality. He claims to be gay. He says that his family have disowned him and, due to prevailing attitudes to homosexuality in Bangladesh and the criminal law which renders sexual acts between men a criminal offence, he says that he will be at risk on return. Although Judge Hendry accepted that a person who is a homosexual or perceived as such would be at risk on return to Bangladesh, he found the Appellant not to be credible and did not accept that the Appellant is in fact gay.

4. The Appellant raises six grounds of appeal. First, he says that the Judge has unlawfully required corroboration for the protection claim and has viewed as inconsistencies a lack of specific forms of evidence rather than internal discrepancies within the evidence. Second, he submits that the Judge has unlawfully failed to give reasons for the adverse credibility findings. Third, he says that the Judge has misunderstood or left out of account some of the evidence and has therefore unlawfully failed to take into account relevant evidence. The fourth ground focusses on what is said to be an inconsistency between findings regarding the Appellant's relationship with his family. The fifth and sixth grounds are targeted at the Judge's findings (or lack of findings) in relation to the evidence of two supportive witnesses.

5. Permission to appeal was granted by First-tier Tribunal Judge Pooler on 31 October 2017 in the following terms (so far as relevant):-

"?3. The judge's reasons are found at [104] - [107]. It is arguable that she relied on matters which were in truth not inconsistencies; failed to make findings on the credibility of two witnesses; failed to give adequate reasons for finding the appellant to have been eg muddled and unreliable; and took into account irrelevant factors while failing to take account of relevant evidence. All grounds may be argued."

6. The matter comes before me to decide whether the Decision contains a material error of law and, if so, to re-make the decision or remit the appeal for rehearing to the First-Tier Tribunal.

Decision and Reasons

7. The focus of ground one is what is said at [104] of the Decision. The Judge there sets out a series of bullet points listing what are said to be inconsistencies. Those can be summarised as follows:-
(a) The Appellant's evidence lacked detail about those with whom he claimed to have had a relationship
(b) There was a lack of evidence other than the Appellant's own evidence about those relationships
(c) There was an inconsistency between the evidence of one of the witnesses and the Appellant about a visit to the gay club "Heaven" (the Appellant did not mention that the witness had attended with him whereas the witness said that he had)
(d) There was no evidence regarding the Appellant's call to his parents after November 2016 during which he said that his parents had cut him off; there was similarly no evidence other than the Appellant's own evidence that his parents had disowned him due to his sexuality.

8. I accept that the majority of the points relied upon at [104] cannot be classified as inconsistencies as such. They are however points which are valid regarding the sufficiency of the evidence. This is not a case where the Judge has required corroboration of the claim. However, as the Judge observed at [102] of the Decision, the central question for her to determine was whether the Appellant is gay or likely to be perceived as gay. In assessing that question, the Judge was entitled to take into account the content of the Appellant's own evidence and whether that contained specific information or was vague. She was entitled to take into account whether there was other evidence supporting the Appellant's own evidence when deciding what weight to give to that evidence and she was entitled to rely on such inconsistencies as there were when assessing the evidence.

9. Taken as a whole, the content of [104] of the Decision is a statement of the deficiencies which the Judge considered existed in the evidence. Those were all matters to which the Judge was entitled to have regard. There is a separate question whether the Judge has misunderstood any of that evidence or failed to have regard to other evidence to which I will turn when I come to grounds three to six. However, the Appellant has not made out his ground one.

10. The complaint made in ground two is that the Judge has not provided examples of where the Appellant's answers were "disjointed", "rambling", "long", "unfocussed", "muddled and unreliable". I accept that it is rarely if ever appropriate to judge an appellant's credibility by reference to his demeanour when giving evidence, particularly absent specific examples. Certainly, if what is said at [102] and [109] of the Decision were the only reasons given for finding the Appellant not to be credible, I would have no hesitation in finding an error of law. However, the Judge provided other reasons at [104] for finding against the Appellant on the central issue. For that reason, even if there were an error in the Judge's reliance on the nature of the Appellant's oral evidence that would not be material.

11. There are a number of separate issues raised at ground three which all focus on the Judge's understanding of the evidence and whether she has taken all into account. I deal with each of those separately.

12. The evidence given by the Appellant as recorded at [33] of the Decision concerning the details of those with whom he had a relationship does not impact on the Judge's finding at [104] that the Appellant did not know those details. His own evidence was that he found out the details at a later stage by other means. The Judge was entitled to find that the Appellant did not know the details of those with whom he was said to have had longer relationships and that this might impact on the weight to be given to his evidence about those relationships. The point made about the Appellant not being able to find out more detail about G because he had deleted G's contact details simply serves to underline the point that the Appellant did not know those details for himself by having learned them during his relationship.

13. I accept that if the Judge had relied exclusively on the lack of evidence from the Appellant's former partners themselves there might be a material error in failing to have regard to the fact that two of them had left the UK (or are said to have done so). However, the point made at [104] of the Decision is that there was no evidence from them not that they did not attend. Again, it might be an error to require evidence from G with whom the Appellant said he had no contact. However, on his own admission he had the means to contact H and the fact that his relationship with A was a brief one did not preclude him obtaining evidence from him. More centrally, in any event, is the fact that the Appellant was unable to produce any evidence of having been in these relationships including by way of evidence of those friends who did give evidence that they had met his partners. There is one minor point about evidence given by Mr H (one of his friends) which I will come to when dealing with ground five. However, there is no material error disclosed in this regard by the Judge's reliance on the lack of evidence as to the relationships.

14. It is said that the Judge has failed to take into account the Appellant's evidence about the obtaining of the newspaper article which is said to show that his parents have disowned him. It is said that the Appellant gave evidence that he only obtained this online and that the Judge failed to take this explanation into account when relying on the lack of any paper copy of that article.

15. This aspect of the grounds is ill-founded. The Judge was entitled to give such weight to the evidence as it deserved. The fact that the Appellant only obtained the article online may explain the lack of a paper copy but the fact of the absence of a paper copy (particularly an original paper copy) inevitably affects the weight which can be given to that evidence. The Judge was entitled to give less weight to the article (effectively to discount it) as a result.

16. Similarly, it is difficult to see what material difference the fact of the Appellant mentioning his sexuality to his GP can have when that is itself based only on what the Appellant himself says about it. The Judge had evidence from the Appellant and it is for the Judge to determine the credibility of the Appellant's own evidence. The references are only in the medical notes of GP consultations. There is a suggestion that the GP intended to refer the Appellant to a relevant organisation to discuss his problems but no evidence that he did so.

17. Similarly, the text message screenshots are incapable of providing substantiation of the Appellant's sexuality. They show only that he is sending text messages on Grindr. That is mentioned in general terms at [41] of the Decision in the report of the Appellant's evidence about what those showed. There is no error in the Judge's failure to mention that evidence in the context of his findings, particularly since it is not contended that any of those persons are men with whom the Appellant has been in a relationship and there is no witness evidence from any of those persons. The text messages are in general very unspecific and do not lend any substance to the Appellant's claimed sexuality.

18. Ground four focusses on what is said to be a discrepancy between what is said at [110] and [104] of the Decision regarding a claimed telephone conversation between the Appellant and his parents prior to his asylum claim. I do not readily follow the complaint made in this regard. What is said at [110] appears to relate only to the Appellant's evidence as recorded at [26] of the Decision that his mother had spoken to him about getting married (in November 2016) and he had therefore told her at this point that he was gay. She had then told his father who had abused him and then published the article disowning him. The point made at [104] of the Decision (penultimate bullet point) relates to the Appellant saying that he tried to contact his family after November 2016 and they cut him off (ie terminated the telephone call). Neither point seems to me to be central to the question whether the Appellant is in fact a homosexual but in any event there is no discrepancy between the Judge's findings in this regard.

19. Grounds five and six relate to the evidence of the Appellant's witnesses and therefore I take these two grounds together. As the Judge pointed out, none of the witnesses are themselves gay. That is not to say as the grounds complain that the effect of these findings is that an appellant's credibility about sexuality depends on him obtaining a large number of witnesses from the gay community to say that he is gay or producing a large number of photographs of him with others from the gay community. However, the criticism again turns on the weight which the Judge gave to the witnesses' evidence.

20. As I have already observed, the central issue is whether the Appellant is credible in his claim to be gay. Obviously, the witnesses who gave oral evidence were not partners or former partners. The other deficiency in their evidence is that they had never met those men with whom the Appellant claimed to have been in a relationship and therefore could not give evidence as to those relationships either. The most they could say is that the Appellant has told them he is gay.

21. There are only two exceptions to that general point. The first is that Mr H said in evidence that he had been to "Heaven" nightclub with the Appellant. However, that is the one actual inconsistency in evidence relied upon at [104] of the Decision and about which no complaint is made as the Appellant apparently did not corroborate Mr H's account in this regard. The other is that Mr H claims to have overheard a conversation between the Appellant and G with whom the Appellant says he was in a relationship. That evidence is recounted at [52] of the Decision as follows:-
"Mr [H] did not meet the man, who he knew was called [G], because he and the appellant broke up. He had spoken to the appellant on the phone when [G] was there. The impression he gained was that they were in an intimate relationship, because they were talking affectionately. The appellant was very upset when the relationship broke down?"

22. That conversation is not mentioned in Mr H's witness statement so there is no more detail about it than what is said in the Decision. It is extremely difficult to understand how a person could reach a view about the intimacy of a relationship from overhearing two people speaking (I assume in the background) when on the phone to one of them. Absent any detail of what that conversation was or how it was that the witness reached the view that this was an intimate relationship based on something overheard in the background of a telephone conversation which was directly with the Appellant and did not involve any direct communication with G, I am quite unable to accept that any failure to mention this in the context of the Judge's findings on the evidence is material. As the Judge records, neither of the witnesses who gave evidence had ever met the Appellant's claimed former partners.

23. As Ms Everett very fairly accepted in her submissions, a Judge's assessment of credibility in relation to sexuality is a difficult one to make because it often will turn in large part on the evidence of the appellant himself. However, as she also submitted and I accept the obligation on the Judge is to assess the evidence in the round. That is what this Judge has done.

24. For the above reasons, I am satisfied that the Decision does not contain a material error of law. I therefore uphold the Decision.

DECISION

I am satisfied that the Decision does not contain a material error of law. I uphold the decision of First-tier Tribunal Judge Hendry promulgated on 9 August 2017 with the consequence that the Appellant's appeal stands dismissed

Signed

Upper Tribunal Judge Smith Dated: 10 January 2018