Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05823/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision Promulgated
On 6 March 2017
On 17 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

PAYWAND [I]
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms N Loughran of Loughran & Co, solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer
DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Paul promulgated on 1 December 2016, which dismissed the Appellant’s appeal on all grounds.

Background

3. The Appellant was born on 12 December 1992 and is a national of Iran.

4. On 19 May 2016 the Secretary of State refused the Appellant’s protection claim.

The Judge’s Decision

5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Paul (“the Judge”) dismissed the appeal against the Respondent’s decision. Grounds of appeal were lodged and on 6th February 2017 Upper Tribunal Judge Coker gave permission to appeal stating inter alia

The grounds seeking permission to appeal draw attention to issues where it is alleged the Judge has failed to record the evidence accurately. Although slim, it is arguable that had the Judge considered the background material more closely in the context of the appellant’s claim then the assessment of the credibility of the appellant’s account may have been different.

The Hearing

6. (a) Ms Loughran, for the appellant, moved the grounds of appeal. She took me to the original grounds, framed as an application to the First-tier Tribunal for permission to appeal, and told me that laid out there were challenges to the Judge’s record of the evidence which was led. She told me that the decision demonstrated that the Judge had failed to give anxious scrutiny to both the objective evidence and the appellant’s oral evidence.

(b) Mr Loughran told me that the Judge’s reasons are set out between [23] and [26] of the decision. She told me that the only reasoning contained in the decision amounts to four short reasons for dismissing the appellant’s claim on the basis of credibility only. She told me that the decision is not safe and that a further fact finding exercise is necessary. She urged me to allow the appeal and to set the decision aside.

7. For the respondent, Mr Mullen told me that the decision does not contain any errors of law, material or otherwise. He told me that the was no substance in the criticism of the Judge’s treatment of the objective material. He concedes that the Judge does not refer to the Canadian report (part of the objective materials) that was placed before the Judge, but reminded me that that report was written in 2006. He told me that the Judge correctly gave greater weight to more recent background materials. He told me that the appellant’s evidence has been carefully considered and analysed, and that the Judge’s conclusion that the appellant is not a credible witness is well within the range of conclusions available to the First-tier Judge. He urged me to dismiss the appeal and allow the decision to stand.

Analysis

8. The Judge sets out a summary of the appellant’s claim between [2] and [7] of the decision, before recording the cross-examination at [8] and [9] of the decision. Between [10] and [15] of the decision the Judge sets out the respondent’s submissions. Between [16] and [19] of the decision the Judge sets out the appellant’s submissions. At [20] of the decision the Judge starts his conclusion and reasons.

9. [20] and [21] are self-direction. [22] emphasises that the Judge viewed the determinative issue to be the appellant’s credibility. It is between [23] and [26] that the Judge analyses the evidence. He commences [23] by declaring

The appellant, in my view, did not give a credible account.

At [27] the Judge again addresses credibility factors by incorporating assessment of section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.

10. The Judge’s reasons for finding that the appellant is neither a credible nor reliable witness are (in the simplest of terms) that the Judge does not believe the appellant. At [23] the Judge says that the appellant’s account “….does not ring true”. At [24] he complains that another aspect of the appellant’s evidence “… Is not clear to me…” At [25] the Judge finds that if the appellant is telling the truth the family’s finances could not possibly stretch to the cost of employing an agent to help the appellant on his journey to the UK.

11. It is clear from [11] and [18] of the decision that the Judge was referred to background materials. It was equally clear (from [18]) that an article 3 ECHR argument was advanced or a slightly different basis to the asylum case. The Judge’s findings of fact are contained in four short paragraphs ([23] to [26] of the decision). There is neither a reference to, nor an analysis of, the background materials.

12. The separate article 3 ECHR argument is not dealt with. At [29] the Judge says

No separate points are raised in relation to articles 2 and 3.

That just cannot be correct, because it is contradicted by what the Judge says himself in the first sentence of [18] of the decision.

13. The Judge dealt with credibility of the appellant without reference to the background materials which were placed before him. He did not, therefore, take a holistic view of every strand of evidence before reaching his decision. There is a contradiction between [18] and [29] of the decision. The Judge has not adequately dealt with the appellant’s appeal on article 3 ECHR grounds.

14. The Judge apparently reaches his conclusion about the appellant’s credibility without considering each strand of evidence, and by measuring the evidence from the appellant alone against the Judge’s own assumptions. When the Judge says at [24] that having considered a passage of evidence matters were still not clear, he identifies confusion in his own mind and perhaps conflicts in evidence which he has not resolved. It is the Judge’s job to resolve conflicts in evidence. The Judge’s rejection of another the passage of the appellant’s evidence at [26] is based on the judge’s own “…view”. The Judge does not explain which piece of evidence, and what findings of fact, lead him to reject that specific part of the appellant’s evidence.

15. The Judge identifies at [25] of the decision one particular aspect of the appellant’s claim which he believes to be the most weighty factor. His reasoning at [25] relies on an inference which is not properly explained, rather than on reasoned findings of fact drawn from each source of evidence.

16. In MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC), it was held that (i) It was axiomatic that a determination disclosed clearly the reasons for a tribunal’s decision. (ii) If a tribunal found oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it was necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight was unlikely to satisfy the requirement to give reasons.

17. The Judge’s central reasons for his decision are found between [23] and [26] of the decision. The reasons given are inadequately explained. There are insufficient findings of fact in the decision, and it is not clear that all of the evidence before the tribunal has been considered.

18. I therefore find that the decision is tainted by material errors of law. A fuller fact finding exercise might have been a different outcome to this appeal. I must therefore set the decision promulgated on 1 December 2016 aside.
19. I consider whether I can substitute my own decision. I have already found material errors of law in the fact-finding process carried out by the first-tier in the decision promulgated on 1 December 2016. I therefore find that I cannot substitute my own decision because of the extent of the fact-finding exercise required to reach a just decision in this appeal.
Remittal to First-Tier Tribunal
20. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
21. In this case I have determined that the case should be remitted because a new fact finding exercise is required. None of the findings of fact are to stand and a complete re hearing is necessary.
22. I remit the matter to the First-tier Tribunal sitting at Glasgow to be heard before any First-tier Judge other than Judge Paul.

Decision
23. The decision of the First-tier Tribunal is tainted by material errors of law.
24. I set aside the Judge’s decision promulgated on 1 December 2016. The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Date 16 March 2017

Deputy Upper Tribunal Judge Doyle