Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05914/2016

THE IMMIGRATION ACTS

Heard at: Liverpool
Decision Promulgated
On: 4th April 2017
On: 27th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

YT
(anonymity direction made)
Appellant
And

Secretary of State for the Home Department
Respondent

For the Appellant: Mr Tettey, Counsel instructed by Broudie Jackson & Canter
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of the Islamic Republic born in 1978. He appeals with permission1 the decision of the First-tier Tribunal (Judge Lloyd-Smith) to dismiss his protection appeal.

Anonymity
2. The Appellant is seeking international protection. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:
“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 to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Background and Decision of the First-tier Tribunal
3. The case before Judge Lloyd-Smith was that the Appellant was at risk of persecution in Iran for reasons of his religious belief: having been born a Muslim, he claims to have converted to Christianity whilst in Iran and been forced to flee when the authorities realised this.
4. That claim had been rejected for want of credibility by the Respondent and on appeal the parties had been in agreement that this was the central issue: if the Appellant made out his claim to be a Christian, his appeal would be allowed [paragraphs 14 and 18 of the determination refer].
5. Judge Lloyd-Smith heard evidence from the Appellant and from a Mrs Hilary Jones, the warden of Holy Innocents church in Fallowfield, Manchester. The Appellant further relied on documentary evidence including ‘screenshots’ from his Facebook page. The Tribunal found as follows:
(i) The Appellant’s claim that the Etelaat treated him with “respect” when he was questioned following the arrest of a Christian associate was not in accordance with the background evidence;
(ii) He gave inconsistent evidence about this matter, having first claimed that he was questioned about whether he followed the Baha’i or Christian faiths, and later having denied that he was so questioned;
(iii) There was no credible explanation as to why the Etelaat would come to the Appellant’s workplace in Iran nine months after this initial contact;
(iv) It was not clear why his girlfriend had not warned him herself rather than asking two intermediaries to do it;
(v) His claim that his sister in America had paid for him to escape was not considered plausible given that he had not apparently spoken to her to thank her or find out how much she had paid;
(vi) The information he was able to give about the Christian faith attracted limited weight because he was asked only obvious questions that could have been anticipated;
(vii) The evidence of Hilary Jones was of limited weight because she had an administrative role in the church rather than a spiritual one (and so was not a Dorodian witness); her knowledge of the Appellant was limited to confirming that he attended the church and it was clear from her evidence that she was unable to confirm whether the Appellant was a committed Christian;
(viii) There was no evidence from the other (Farsi-speaking) church that the Appellant claims to regularly attend;
(ix) The two Facebook screenshots were not strong evidence of online activity. The two were identical save that on one a picture of Christ on the cross had been superimposed over the text. There is a photograph of Jesus on the Appellant’s cover photo but this proves nothing and could easily have been inserted for the screen shot as opposed to being his public profile. Little weight is placed on this evidence as placing him in a risk category.
6. The global sum of these findings was that the account of events in Iran was a fabrication, the Appellant has not demonstrated himself to be a genuine Christian and there is no evidence to suggest that he would be perceived as such. The appeal was dismissed on all grounds.

The Appeal
7. The grounds of appeal were drafted by Ms Pickering of Counsel and were amplified before me by oral submissions from Mr Karnik. It is submitted that:
(i) Re religious conversion
(a) The dismissal of the evidence of Hilary Jones on the basis of her “administrative” role in the church was not in accordance with the evidence, which indicated that she had taken responsibility for the production of the Appellant’s liturgy, his baptism certificate and the church records. She was in a position to speak to his faith;
(b) It is unclear why the First-tier Tribunal thought that the Appellant needed to have something in writing from the Farsi speaking church.
(ii) Re internet activity
It is submitted that the First-tier Tribunal misdirected itself in its assessment of risk. Applying AB and Ors (internet activity – state of evidence) Iran [2015] UKUT 257 (IAC) it was reasonably likely that someone with a picture of Christ on his Facebook page would excite interest on arrival, and it would not matter whether the post was opportunistic.
(iii) Procedural unfairness
The Tribunal’s conclusion that the picture could have been superimposed was not put to the Appellant.
(iv) Failure to apply principles in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31
The extant country guidance is SSH & HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC). This makes clear that if there are any particular concerns arising from the returnees activities then there would be a risk of further questioning, detention and potential ill-treatment. Since the Appellant could not be expected to lie about whether he had claimed asylum, and why, this analysis should have applied to him.
8. Mr McVeety opposed the appeal on all grounds. He accepted that there was a clear picture of Christ on the Facebook pages and that even if the one that is superimposed on the text is disregarded, the other one is there. He pointed out however that it could be removed as easily as it was posted, and submitted this to be the clear finding of the First-tier Tribunal. The Appellant was not a genuine Christian, so no HJ (Iran) issues arose. He could simply delete any offending images (if indeed they are even still on his Facebook page) before he returned to Iran. If he was asked if he claimed asylum he could tell the border guard that he had lied and pretended to be a Christian. There was no evidence to support the contention that he would be at risk in those circumstances.

My Findings
9. First of all I note that the grounds contain no challenge to the Judge’s findings on the claimed events in Iran. The First-tier Tribunal gave cogent reasons why that account was disbelieved: see paragraph 5(i)-(v) above. It is apparent from the structure of the determination that the Appellant’s claimed conversion in Iran is considered alongside his claimed faith in the UK, and that they were two parts of a composite question: is the Appellant in fact a Christian? The rejection of the historical account was plainly relevant to the assessment of the current position.
10. In respect of ground (i) I am satisfied that the Tribunal was entitled to place limited weight on the evidence of Hilary Jones. Her evidence was not rejected, it was simply noted that she was herself unable to confirm with any conviction that the Appellant’s claimed faith was genuine:
“In answer to Ms Pickering she said that she never refused to write a letter or attend court but would if she felt unable to support someone. Her letter in the appellant’s bundle candidly acknowledges that “it is not my place to make ‘windows into the soul’ and sees the appellant as someone “who may not have a lot of formal education but who values the opportunity to belong to a community to contribute to it by presence and participation and who is finding the way”. This is a long way off defining a committed Christian convert and it was clear from her evidence that she would be unable to make that assessment”.
[at 20(h) determination]
11. As to the comment about the Farsi church, my reading is that the Tribunal was simply pointing out that a Dorodian witness could have been forthcoming from there, rather than Holy Innocents where the pastor was said to be off on long-term sick leave.
12. In his submissions Mr Karnik concentrated on grounds (ii) and (iii) and it is convenient to consider them together. The evidence in question consisted of two screenshots said to be from the Appellant’s Facebook page. They appear at pages 18-19 of the Appellant’s bundle. They appear to be identical, save that on one, in the middle of the page and imposed over text and other photographs, is a picture of Jesus on the cross. At the top of each page is what appears to be a close up image of Jesus wearing the crown of thorns.
13. The written grounds suggest that there was some procedural unfairness in the determination suggesting that the photograph of Jesus on the cross was “superimposed” when it had not been put to the Appellant in cross-examination that he had “somehow doctored/amended his Facebook account”. I do not think that there was an accusation of that sort of evidence tampering here. It is my reading of the determination that the Tribunal was simply pointing out that pictures on a Facebook page, like any written content, can be posted and then taken down again. (I would note that looking at it myself it does in fact look as if this particular image was superimposed on a photocopy of the screenshot: if the Tribunal had made that point it would have been wholly justified, it being an obvious matter that Counsel should have addressed in examination in chief). That particular photograph is perhaps not all that relevant, since the cover photo, which appears an integral part of the page, is also of Jesus. That is recognised by the Tribunal at paragraph 22(c) and by Mr McVeety before me. The point however stands: content on these pages can be altered or deleted by the account holder very easily. The Appellant had given evidence that he had previously taken down “anti-Islamic” content. It was therefore open to the Tribunal to conclude that he could do that again. Since it was not accepted that he was a genuine Christian, it would be no violation of the Refugee Convention to expect him to do so.
14. In his submissions Mr Karnik suggested that even if the offending images were taken down now, there was still a real risk that the Iranian authorities would know about it, either because of their monitoring of online activity of the Iranian diaspora, or because they would be able to trace the historical content of the page if they were investigating it upon the Appellant’s arrival. I accept that the Iranian authorities are believed to spy on the internet activity of Iranians, both at home and abroad: AB (internet activity). The evidence of that falls far short however of establishing that they would have interest in the Facebook page of this Appellant, who has no profile at all, be it religious or political. Presumably there is a limit to the resources that they have at their disposal. Similarly, I do not know whether it is even possible for an IT expert to mine a Facebook account for deleted content, but there is no evidence before me to suggest that they would do so in this case. The Appellant would be returned to Iran as a failed asylum seeker, with no reason to come to the adverse attention of the security services in Iran. If they looked at his Facebook page it would appear entirely innocuous (assuming that he had deleted the image of Christ). At its highest the most that can be said about this ground is that the decision of the First-tier Tribunal does not contain a clear finding that the Appellant would in fact remove this content should he be facing removal to Iran, but I am satisfied that this can be inferred from the negative credibility findings, his own evidence that he had done just that in the past, and the fact that he is not actually a Christian.
15. This brings me to ground (iv). Mr Karnik relied on SSH & HR to submit that the Appellant would likely face some questioning on arrival, and that since he could not be expected to lie, he would have to divulge that he had been attending church and had been baptised. This in itself, even if the Appellant denied the sincerity of these actions, would place him at risk in the context of Iran.
16. The evidence before the Tribunal in SSH was that the Iranians are alerted in advance of a returnee’s arrival by the fact that travel documents would need to be obtained from the embassy in London. The Appellant arrived on a false Spanish passport so this process would need to be followed in the event that he were to be removed. The request for a laissez passer would stimulate security checks into whether he had been involved in any suspect activities outside of Iran. The Danish Refugee Council’s 2008 evidence “that if a person is from an ethnic or religious minority background or has engaged in opposition or political activities the consulate or embassy might not issue them with a travel document” was rejected in favour of Dr Kakhki’s assessment which was that any individual who could establish he was Iranian would be given a travel document. I am not satisfied that any risk would arise at this stage, since there is no evidence that the Iranian embassy in London, in conducting their security checks, could know that the Appellant now claimed to be Christian: his identity records would show him to be a Muslim with no adverse record in Iran. Thereafter there are said to be two stages at which a person potentially faces difficulty.
17. The first, and the only relevant for the purpose of this decision, is when he is questioned on return to Iran, an event considered likely by the panel in SSH, which went on to conduct a careful analysis of the evidence on persons who had encountered difficulty at this ‘pinch point’. Each of the specific cases that the Tribunal was referred to had some distinguishing feature in his or her personal history such as to elevate them out of the class of ‘failed asylum seekers’. The Tribunal specifically considers, and rejects, the notion that the act of claiming asylum itself would be considered to be an act of propaganda or opposition to the Iranian state. It concludes [at 23] that Dr Kakhki summed the position up well when he suggested that “if they co-operated and accepted that they had left illegally and claimed asylum abroad then there would be no reason for ill-treatment, and questioning would be for a fairly brief period”. There is no evidential basis for concluding that this Appellant would be in a different position from the returnee who had, for instance, falsely advanced a claim of Kurdish activism, or behaviour violating social mores in Iran. All asylum claims, whether genuine or false, would by definition involve some criticism or opposition of the Iranian state. It was the clear finding of the Tribunal in SSH that this is a matter that would not in general excite the adverse interest of the Iranian authorities upon an individual’s return.

Decisions
18. The determination of the First-tier Tribunal does not contain an error of law such that it should be set aside.
19. There is an order for anonymity.

Upper Tribunal Judge Bruce
26th April 2017