Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05871/2019

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 12 December 2019
On 2 January 2020

Before

UPPER TRIBUNAL JUDGE DAWSON

Between

oq
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr C Frame, Jones Whyte Solicitors
For the Respondent: Mr A Govan, Senior Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal by a national of Afghanistan against the decision of First-tier Tribunal Judge Buckwell, who dismissed the appellant's appeal against the Secretary of State's decision dated 6 June 2019, refusing the appellant's protection claim, which had been made on 2 December 2015. The appellant had sought protection based on adverse interest in him by the Taliban and apprehensions over his safety should he be returned to Kabul, where he previously lived.

2. The appellant's account is that his flight from Afghanistan was triggered by the discovery, whilst working as a garage mechanic, of bomb materials in a car. He later observed from watching television the next day that the car was used in a suicide bombing attack. The appellant claims that he alerted his employer to his discovery whilst working on the car. He also believed that his employer was complicit by virtue of his dealings with the Taliban. The Taliban kidnapped the appellant and detained him in order to discover whether he had passed on what he had learned. The appellant was able to escape and left Kabul and Afghanistan between December 2014 and January 2015, before reaching the United Kingdom approximately a year later, on 2 December 2015.

3. In the usual way, the appellant underwent a screening interview on 2 December and interviewed substantively about his claim on 22 March 2017. Prior to that he submitted a statement dated 11 February 2016 which referred to aspects of his journey to the United Kingdom but made no mention of the events on which he now bases his asylum claim.

4. That claim was briefly indicated in the screening interview as follows:-

"I cannot return as I am scared I would be killed by Taliban as I found guns and bomb in a car used in a suicide bombing. I was beaten and kidnapped but managed to escape. I fled as I would be killed."

The appellant also revealed at the screening interview that he was a mechanic.

5. The appellant explained in his substantive interview that he was from Balkh Province. Following completion of his schooling, he worked at his father's shop and thereafter started working as a mechanic in Kabul.

6. The Secretary of State did not accept the appellant's account of kidnap by the Taliban for reasons given in a refusal decision dated 6 June 2019. Nor did Judge Buckwell accept the account. His reasons are set out in a detailed decision which records the basis of the claim, the reasons why it had been rejected by the Secretary of State, the evidence given at the hearing and submissions leading to the judge's findings that cover some four pages. The judge identified credibility to be "critical" and in the light of the nature of the challenge to the findings of fact it is necessary to set out the relevant passages as follows:-

"80. As credibility is so significant in this particular appeal I carefully consider the Appellant's account. In relation to his claim to have worked as a mechanic in Kabul, that is entirely plausible. It is also plausible that certain employers may have had sympathies towards the Taliban. I find it far less plausible that the Appellant's employer, from whom the Appellant took specific instructions at work, would have allocated a tyre or wheel replacement task to the Appellant when it is of course entirely obvious that a spare tyre/wheel is ordinarily kept in the boot of a car. The car concerned, on the account of the Appellant, had in the boot suicide jackets, vests, and explosive materials and therefore items which would immediately become obvious to any person opening the boot. I find it to be inconceivable that the Appellant's employer, stated by the Appellant to be a supporter of the Taliban, would not have been aware of the particular car and indeed would not have been entirely conscious of the items which were placed within the boot, from where access to the spare tyre or wheel would have had to have been gained.

81. It is on my finding neither plausible nor credible that the Appellant's employer, who appears not to have raised the issue of his support for the Taliban with the Appellant at an earlier stage, would not have been extremely cautious of enabling the Appellant to see that there were lethal items within the boot of the car concerned. It is unlikely that the employer would that day have been preparing other vehicles for use in a suicide bomb for later that day. The Appellant did not refer to such a scenario. It is therefore simply not credible that the Appellant's employer would not personally have been paying significant attention to what was happening to the bomb vehicle and to work being undertaken on it by any third party, including the Appellant. The employer would have known that that very vehicle was to be used later in that day.

82. Mr McCallum made the point that the Appellant appeared to have given certain differing versions as to what items he had found within the car boot. I accept the views of Mr McCallum expressed in that respect. Furthermore the Appellant in relation to other questions was somewhat evasive in his replies. By way of example I refer to what is recorded at paragraph 47, above, in the remarks of Mr McCallum which were apt.

83. The Appellant appears not to have attracted any attention from his employer even though he opened the boot and had had to do so in order to access the spare tyre/wheel and a wheel brace to fit the particular car wheel nuts. It seems very strange that the Appellant's employer would not at any stage have realised that the Appellant would come to see the items in the boot. As on the evidence of the Appellant his employer was involved with the Taliban it must be that the employer would have been aware of what items were in the boot in readiness for the destructive use of the vehicle. That in itself would surely have given rise to some attention by the Appellant's employer to what the Appellant was doing. However no reference to that is within the account of the Appellant. It is not plausible that his employer would not have paid any attention to the actions of the Appellant whilst he was accessing the boot.

84. The Appellant maintains that he was so shocked and fearful as a consequence of seeing what was in the car boot that he felt obliged to speak to his employer, although he did not do so until the next day. On the basis that the Appellant's employer apparently had not spoken to the Appellant himself on the day when the Appellant changed the wheel it is perhaps somewhat incredible that the Appellant had taken no other action. He did not inform that authorities and he returned to work. He states now that he became aware only later that his employer was then affiliated to the Taliban. If that was so why would the Appellant not immediately have raised his concerns with his employer on discovering what was in the car boot? However that was not done.

85. The Appellant states that he was kidnapped and detained out of the locality on his return to his home from work on the day following his discovery of the items in the car boot. It is perhaps surprising that the employer himself had not taken any action against the Appellant but had left him to return home. That is particularly so if the employer was as involved with the Taliban as the Appellant says that he later discovered him to be.

86. The Appellant states that he was detained. It is somewhat unclear why his detention occurred. In the country circumstances it is clear that individuals are detained and murdered almost at will in certain circumstances. There was nothing to be gained by those who detained the Appellant the day after he had discovered the items in the car boot. It is unclear what the Taliban representatives would have hoped to have gained by detaining the Appellant when, it is assumed, they would have taken is life quite easily.

87. I find the account of the Appellant's claimed escape from Taliban custody to be other than credible. His replies in interview failed to disclose whether the room in which he stated he had been detained had had a locked door or not. He did not fully explain how, with his hands tied behind his back, he was nevertheless able to open the door from the inside (and it possibly being a door which was locked from the outside), but the Appellant asserts that he did so, and that with his hands tied behind his back he ran a long distance to escape from the place where he had been held. As he was running he was able to untie the cloth which had bound his hands behind his back. He then gives an account whereby it appears that his location was to a degree at least discovered and therefore he was advised by friend to leave the country."

7. The judge also expressed concerns over the claim by the appellant as to the cost of his journey at paragraph [88] as follows:

"88. In the statement which the Appellant put forward to the Home Office it appears that he paid agents a sum of US$1,600. This Tribunal does not profess to have any specialist evidence as to sums which are paid to traffickers to ensure an individual transfers successfully from Afghanistan to the United Kingdom, but based on the experience of this Tribunal the amount stated by the Appellant seems to be significantly low. Considering the journey of the Appellant, during which he indicates he was assaulted by an agent at nearly every stage, at least until reaching Calais, the sum is low and beyond comparable figures of which this Tribunal has been made aware by other asylum claim appellants in the past. That does not add to the plausibility or credibility of the Appellant's account."

8. In concluding paragraphs thereafter, the judge expressed his conclusion on risk as a consequence of the negative credibility findings in paragraph 91 as follows:-

"91. For the reasons stated above it is not found that the Appellant has a genuine and current well-founded fear of persecution for a Geneva Convention reason if he were to be returned to Afghanistan. In that respect I do not accept that current guidance establishes that any individual is at risk as to the appropriate degree just by his or her presence in Afghanistan."

9. Five grounds of appeal have been relied on, and I take each in turn. I am grateful to Mr Frame and Mr Govan for their detailed submissions and engagement with each of these grounds. The first four challenge the correctness of aspects of the judge's credibility findings (but do not assert irrationality). The final ground challenges the judge's approach to the country evidence, in particular a report by Global Peace Index which had not been considered in AS (Afghanistan) [2019] EWCA Civ 873. This report ranked Afghanistan as the lowest in the world as to the state of peace.

Ground 1

10. It is contended that the judge erred in finding that the appellant appeared to have given differing versions as to the items he had found within the car boot. It is argued the judge ought to have found that the appellant had been consistent, having amended his asylum interview on the basis that an answer had been misinterpreted and he had clarified the timeframe within which he had found the explosive devices, a position that was maintained in cross-examination.

11. As will be seen from the above extracts, the differing versions as to the items the appellant had found within the car boot are briefly dealt with in paragraph [82], in the context however of a number of other aspects of the account which troubled the judge.

12. I have cited above the relevant extract from the screening interview. In the substantive interview in response to Question [49] when the appellant was asked about the incident he explained:-

"I worked in a garage in Kabul, I was working, my bosses name was called S, while I was working there I noticed armed men used to come and bring their vehicles for repair.

After about 8 months or so working in the garage, 1 day the boss told me that there is a car that we need to fix. When I jacked the back of the car, I noticed there were explosions under the vehicle.

I was too scared to say anything to the boss, and those guys basically left in the vehicle. That night when I was watching the news I heard that in Wassim Akbar district of Kabul there had been an explosion.

I recognised the vehicle on tv, I recognised the colour, I mentioned it to my boss the following morning, I said did you listen to the news, he said why what have you seen, I explained to him that the vehicle I had looked at yesterday was involved in an explosion, he said just get on with your job there is always explosions happening in Kabul.

That day I was no my way home, a vehicle nearly hit me, then 3 men got out and put their hand on my mouth, and they kidnapped me.

I lost consciousness and when I woke up I realised my hands were tied and I was blindfolded."

13. After explaining further details in relation to the incident the appellant was asked at Question 58: "Why did you not say anything to your boss when you found the explosions on the car".

To which the appellant relied:

"As soon as I jacked the car up, I noticed that, he said to me you go to the shops, send me on a message, he attended the vehicles himself."

In the amendments and addition to the interview, under the heading Question 49, the appellant explains:

"Top of page 9, paragraph 1: I did not say "armed men", I said men with turbans and beards.

Paragraph 2: I said that when I opened the boot to get the jack and tyre brace. I could not find them there, instead I saw there were two explosive vests and explosive devices. I did not say they were under the vehicle, this had been misinterpreted."

14. At interview the appellant was asked the date when he had found the explosions under his car and had responded that it was a Tuesday, giving a month and year in the Afghan calendar. In the additions and amendments, under the heading Question 50, the appellant explains:

"To clarify, the explosions weren't "under" the car, they were in the boot. This is due to the misunderstanding with the interpreter in question 49."

15. In respect of the answer given to Question 58, the appellant explains:

"My answer has been misinterpreted here again. I was busy at work when the car arrived, my boss told me to change the cars tyres. I opened the boot to take the spare tyre, jack and tyre brace out but when I opened it I noticed the explosive vests and explosive materials. My boss shouted at me (while he was talking to the men) to ask why I was in the boot as he wanted me to go to the shop to get the jack and tyre brace. Then he fixed the car himself."

16. In his witness statement the appellant states at paragraph 6:

"About 7 to 8 months into this job, we had a car come into the shop. My boss told me to fix it. The car was a little further away from the shop, parked outside. I walked over to the car, and I noticed that they had a flat tyre so I proceeded to do the usual work for this. I opened the boot of the car to get a jack and a wheel brace out and when I opened the boot I saw two suicide vests with bombs attached to them, and some explosives with wires. I have seen such things on television many times, and what I'm sure that what I saw were suicide bomb vests. I didn't say anything about this to my boss at this stage."

17. The judge notes the explanation for referring to guns at the screening interview as that the appellant had been very tired and was unsure exactly as to what had happened. He speculated that he had made mistakes in that interview. The judge also records the exchange in cross-examination on the consistency between the accounts.

18. In my judgment it is not arguable that the appellant gave a consistent account of what he discovered on or in the car. He is recorded to have been adamant that he had spoken of two suicide jackets and of explosions at the substantive interview, and when it was put to him that such remarks had not been recorded, he ascribed this to there having been some interruption to the video-link which had been used. I see no indication of such an interruption in the record of interview. Furthermore, the appellant is noted to have confirmed he understood the interpreter and was content for matters to be interpreted from Dari. The amendments to the record of interview are different in substance as to where and how the appellant saw the bomb material. It is not clear why the appellant felt compelled to change his account but it is not evident that the need to do so was driven by misinterpretation. I am satisfied that the judge was entitled to accept the submission that different versions had been presented as part of the overall credibility assessment and did not err in doing so.

Ground 2

19. It is argued that the judge erred by engaging in speculation by reference to the employer having been aware of the items that were in the boot. It is contended that no evidence was led as to what was in the mind of the appellant's employer and that the judge had made an assumption that the employer was aware of the contents of the boot, thereby engaging in speculation. With reference to the response to Question 58 set out above, Mr Frame accepted that it could be inferred (from the employer's conduct) that the employer was aware of the contents of the car but submitted that no evidence had been led on this aspect at the hearing. With reference to the amendment to Question 58 (set out above), he considered that the amended answer could be interpreted as meaning that the employer was unaware and asked the appellant to go and buy a jack. Although such a scenario in my judgment would be odd, bearing in mind the nature of the work and the repair shop, nevertheless, even if another interpretation could be given, it does not follow that this resulted in error by the judge. In my judgment there was a proper evidential basis for the judge to conclude that the employer would have been aware of the items in the boot.

Ground 3

20. It is argued that the judge failed to take note of the appellant's position as set out in his statement and in cross-examination in observing that it was somewhat unclear in paragraph 86 why the detention had occurred. It is contended the appellant's position was clear in that his kidnappers demanded to know whether he had passed on any information as to what he had witnessed. Mr Frame referred me to passages in the witness statement which indicated that the appellant had been tortured to extract information. Mr Govan accepted the judge had erred as to why the detention had occurred but contended the point could not be taken in isolation of the other credibility concerns, in particular with reference to paragraphs 84 and 85 and the plausibility of the appellant being able to leave the premises having seen the bomb material.

21. In paragraph [86] the judge appears to have been troubled by the absence of any precipitate action by the Taliban. The appellant's account is that he was detained in order to be questioned and I readily accept that might well be an explanation for such detention but having regard to the context of this paragraph, it is clear the judge was concerned as to why the Taliban, which included his employer, did not promptly deal with the risks that the appellant posed by virtue of his discovery there and then. Paragraph [86] might have been better expressed but I am not persuaded the judge strayed into error. This is particularly so in the light of the factors considered in paragraph 87 which are not the subject of any challenge.

Ground 4

22. It is argued that the judge had erred by speculating in paragraph [88] as to the plausibility of the sum paid for the appellant's journey. Having stated that he did not have any specialist evidence as to sums which are paid to traffickers, the judge then drew on his own experience of such matters without explaining the figure-work that led to this conclusion. It is not evident that the point was put to the parties nor was it raised, as acknowledged by Mr Govan in the refusal letter. It is an error for a judge to make a finding which is not evidence based. Nevertheless, having regard to the care with which the judge otherwise approached his factual findings, I am not persuaded that this aspect alone is sufficient to alloy the correctness of those findings which related to the core of the account rather than the peripheral matter of the journey.

Ground 5

23. This ground is one on which Mr Frame argued with some force that the judge had not provided adequate reasons. He was the advocate before Judge Buckwell but did not have with him his note of the hearing as these had remained with the solicitors for whom he had previously worked and who had previously represented the appellant. The Global Peace Index 2019 is a lengthy document. From memory Mr Frame recalled that he did not go into detail in his submissions but merely referred to the beginning of the report and the overall graph. He also referred the judge to a passage on page 12 setting out the five most and least peaceful countries by domain.

24. The executive summary explains that the Global Peace Index is the world's leading measure of global peacefulness covering 99.7% of the world's population. It refers to Afghanistan now being the least peaceful country in the world and replacing Syria.

25. The judge referred to the documentation before him in the decision and in particular the four articles from the public domain relating to country conditions in Afghanistan in the appellant's bundle as well as the CPIN Report and AS (Afghanistan). At [70] he explained:

"70. Mr Frame encouraged me to find that the account of the Appellant overall had been consistent. The Appellant's burden therefore had been discharged. In relation to Humanitarian Protection Mr Frame guided me to the reports provided. Country circumstances were also relevant although I remarked that the country guidance case had not established that the presence of an individual in itself might put that person at risk in Afghanistan. It was agreed that the decision in AS (Afghanistan) (above) was subject to appeal."

26. The focus of submissions before me was on the Global Peace Index. Mr Frame reminded me that it post-dated the decision in AS (Afghanistan). By way of response Mr Govan argued that this was a general document and contrasted the position before the Tribunal in AS (Afghanistan) which looked at a number of sources and areas specifically relating to Kabul. In my judgment this is an important point. The Tribunal in AS (Afghanistan) was charged with considering whether it would be unduly harsh for relocation to Kabul and was not considering Afghanistan as a whole. In reviewing that decision on appeal, Lord Justice Underhill was concerned with two grounds. The first related to the correctness of the statistics relied on by the Upper Tribunal as to the extent of violence and the second ground related to the correctness of the Tribunal's approach by proceeding on the basis simply that conditions that the appellant would experience in Kabul would be normal for many people. The Upper Tribunal was found to have erred in respect of the statistics but dismissed the appeal on ground 2. The case was remitted to the Upper Tribunal:
"? on the basis that it need to reconsider its conclusions only on the question of the extent of the risk to returned asylum seekers from security incidents of the kind considered at para 190 - 9 of its Reasons. Although of course the relevance of that risk is to the overall issue of whether it is reasonable for asylum seekers to be expected to relocate to Kabul, it is in practice a self-contained element within that assessment, and since I would hold that there was no error of law in the Tribunal's approach to the other elements I see no reason why those elements require to be reconsidered". (Per Underhill LJ at [80])
27. AS (Afghanistan) remains a country guidance decision on the Upper Tribunal database. If the consequence of the Court of Appeal decision is that it is no longer to be relied on as Country Guidance regard needs to be had to the country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC). The decision of the Tribunal in AS (Afghanistan) was that AK remained unaffected by its decision and in my judgment since the appellant's last place of residence was in Kabul, Judge Buckwell was tasked with considering whether the appellant could safely return there, having found that he would not be at specific risk from the Taliban based on the negative credibility findings.

28. Practice Direction 12 of the Immigration and Asylum Chamber with regard to Country Guidance determination provides:
"12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters "CG" shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later "CG" determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:

(a) relates to the country guidance issue in question; and

(b) depends upon the same or similar evidence."

?"

29. The Tribunals in AS (Afghanistan) and in AK undertook a survey of a wide range of evidence with a particular focus in each case, the earlier being relevant to this appellant's case that he would be at risk by virtue of the unrest in Kabul. I accept that Judge Buckwell did not provide detailed reasons why he was not persuaded to depart from Country Guidance in the light of the Global Peace Index. That report however is not sufficiently specific or focussed to justify departure from Upper Tribunal Country Guidance and in my judgment any error by Judge Buckwell was not material.

30. Having concluded that none of the grounds is made out, this appeal is dismissed.
NOTICE OF DECISION

The appeal is dismissed.

No anonymity direction is made.

Signed Date 19 December 2019

UTJ Dawson

Upper Tribunal Judge Dawson