Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06847/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 6 March 2017
On 21 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

DANA HUSSAIN RAHIMI
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Martin, of Jain Neil & Ruddy, 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 Blair promulgated on 12 December 2016, which dismissed the Appellant’s appeal on all grounds.

Background

3. The Appellant was born on 11 July 1994 and is a national of Iran.

4. On 17 June 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 Blair (“the Judge”) dismissed the appeal against the Respondent’s decision. Grounds of appeal were lodged and on 31st January 2017 Upper Tribunal Judge Canavan gave permission to appeal stating inter alia

It is at least arguable that the Judge might have failed to take into account evidence that was material to a proper assessment of the appellant’s claim to be an Iranian national from Western Azerbaijan province. The Judge arguably failed to take into account maps produced by the appellant identifying his village. It is also arguable that he took into account evidence that the appellant gave in interview that went against him but failed to take into account evidence that might have supported his account. It is arguable that the appellant showed some knowledge of the Iranian calendar and of the Iranian ID documentation (albeit that he was not found credible in his explanation as to why he was unable to produce a document). I take into account that the Judge made alternative findings relating to the substance of the claim but it is at least arguable that any error relating to the assessment of his claimed nationality could have affected the Judge’s assessment of the overall credibility of the claim.

The Hearing

6. (a) Mr Martin, for the appellant, moved the grounds of appeal. He took first grounds 2, 3 4 & 6, and told me that the Judge had made irrational findings and come to perverse conclusions. He referred me to a map of the appellant’s home area, produced in the appellant’s first inventory of productions before the First-tier. He referred me to the appellant’s answer to question 46 of asylum interview and then took me to [16] of the decision. He argued that the use of the word “but” in the first sentence of [16] creates the impression that the Judge thought that western Azerbaijan is a country, rather than a region within Iran.

(b) Mr Martin told me that both the reasons for refusal letter and the Judge’s decision rely on similarly named towns in different countries, and told me that the appellant’s nationality and claimed home area are important to his asylum appeal. He told me that both the respondent and the Judge have taken a confused approach to local geography and the currency of Iran. The result of the confusion, according to Mr Martin, has led the Judge to apply too high a standard of proof when assessing the evidence. Mr Martin told me that there is an inadequacy in the findings of fact and that the Judge does not properly explain why he rejects the appellant’s evidence. He told me that the appellant’s evidence in relation to his identification document is cogent and should have been accepted by the Judge, again arguing that an incorrect standard of proof has been applied.

(c) Mr Martin told me that the Judge’s findings in relation to nationality are unsafe. He told me that the Judge’s finding that the appellant is not an Iranian national taints the remainder of the decision, so that the entire decision is undermined.

(d) Mr Martin moved the first and fifth grounds of appeal, and told me that there is an inadequacy of reasoning between [22] and [26] of the decision. He urged me to allow the appeal, to set the decision aside, and to remit this case to the First-tier for determination of new.

7. Mr Mullen, for the respondent, told me that the determination does not contain errors of law, material or otherwise. He told me that the decision is a carefully reasoned decision which takes full account of the evidence, weighing the evidence before giving fully reasoned conclusions. He urged me to dismiss the appeal and allow the decision to stand.

Analysis

8. The grounds of appeal go first to [22] to [24] of the decision. It is argued that the Judge fails to give clear and cogent reasons for rejecting the appellant’s evidence of claimed persecutory treatment in Iran. The Judge’s findings start at [14] of the decision. At [16] & [17] the Judge explains that the appellant identifies towns by saying they feature on the route from his home village to Sardasht city, but some of the towns the appellant identifies do not feature on that route. The background materials and maps tell the Judge that some of the towns are across the border, in Iraq.

9. At [18] & [19] the Judge narrates that the appellant could not adequately identify the currency of Iran. At [20] the Judge gives the appellant credit for a series of correct answers about an identity card, but explains why he rejects the appellant’s evidence in relation to his own identity card. [22], [23] and [24] of the decision cannot be read in isolation. They form part of the Judge’s overall assessment of the appellant’s credibility, which starts at [15]. Between [15] and [24], the Judge sets out adequate reasons for rejecting the appellant’s evidence. It is those reasons which lead to the crucial first sentence of [25].

10. The first sentence of [25] is

I do not accept that the appellant is Iranian.

That sentence is the fulcrum of the decision. [14] to [24] of the decision set out adequate reasons for reaching that conclusion. The conclusion is fully supported by careful analysis of the evidence.

11. Perversity has a high threshold. In Dasgupta (error of law – proportionality – correct approach) [2016] UKUT 00028 the Tribunal held that in error of law appeals relating to findings of fact, the Upper Tribunal should apply the principles in Edwards v Bairstow [1956] AC 14. In Edwards v Bairstow [1956] AC 14 Viscount Simonds said " For it is universally conceded that, although it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained." Elsewhere the House of Lords referred to " perversity", defining this as a case in which " ..... the facts found are such that no person acting judicially and properly instructed as to the relevant law could come to the determination under appeal." In R and Others v SSHD (2005) EWCA civ 982 Lord Justice Brooke noted that perversity represented a very high hurdle. It embraced decisions which were irrational or unreasonable in the Wednesbury sense.

12. The Judge’s findings are neither irrational nor perverse. The findings were open to the Judge on the evidence placed before him. They are findings which are fully supported by what the Judge says between [14] and [24].

13, The appellant challenges what is said at [16] of the decision, specifically stating that the findings there are perverse and irrational. The real challenge is to the word “but” where it appears on the second line of the first sentence. Mr Martin argued for the appellant that the first sentence indicates that the Judge believes Western Azerbaijan is a country, not a province in Iran.

14. There is no merit in that submission. The first sentence of [16] summarises the appellant’s position. It is not part of the Judge’s findings that there is a separate country known as Western Azerbaijan. A fair reading of the entire paragraph makes it clear that the Judge is comparing the appellant’s assertion with the background materials, and finds that the appellant’s evidence does not bear comparison to reliable background materials.

15. The third ground of appeal is nothing more than an attempt to argue the appellant’s case once again. Having suggested that the findings at [16] are perverse, the appellant relies on what it said at [16] to suggest that there is a contradiction between [16] and [17]. A fair reading of the entire decision makes it clear that there is no contradiction. At [16] and [17] the Judge sets out features of the appellant’s account which he rejects. He gives clear reasons for rejecting those features of the appellant’s account. As I have already indicated, there is a high threshold for irrationality. The arguments for the appellant do not approach that threshold. In any event the reasons given by the Judge at [16] and [17] are clear, coherent and sustainable.

16. The appellant argues that the Judge applied too high a standard of proof at [18] & [19]. Once again there is no merit in the argument for the appellant. At [7] the Judge correctly identifies the standard of proof. At [14] he correctly takes guidance from HA v SSHD [2007] CSIH 65. At [18] and [19] the Judge identifies the passage of evidence he was considering and explains why he rejects it. The appellant’s solicitors coyly choose not to say which standard of proof they argue has been applied.

17. The 5th grounds of appeal challenges [25] and [26] of the decision, arguing that there is an inadequacy in the Judge’s reasoning. As I have already indicated, the first sentence of [25] is the fulcrum of this decision. [25] & [26] should not be read in isolation. If the entire decision is read it will clearly be seen that [14] to [24] set out the reasons for the conclusions reached at [25] and [26]. Between [14] and [24] the Judge sets out adequate reasons for reaching the conclusion he reaches.

18. The 6th ground of appeal returns to [20] & [21] of the decision. The 6th ground of appeal is an attempt to rehearse the arguments advanced before, and rejected by, the First-tier. What is argued is an inadequacy of reasoning. That is a surprising suggestion given the detail contained in [20]. It was for the First-tier Judge to assess and analyse the evidence that was placed before him, and at [20] (and throughout the decision) the Judge clearly analysed the evidence, assessed the appellant’s credibility, and reaches conclusions which are well within the range of conclusions reasonably open to the Judge to reach.

19. Having taken correct guidance in law and made sustainable findings of fact, the Judge reached his conclusion. It is not a conclusion that the respondent likes but it is a conclusion which was reasonably open to the Judge on the facts as he found them to be.
20. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

21 There is nothing wrong with the Judge’s fact finding exercise. In reality the appellant’s appeal amounts to little more than a disagreement with the way the Judge has applied the facts as he found them to be. The appellant might not like the conclusion that the Judge has come to, but that conclusion is the result of the correctly applied legal equation. There is nothing wrong with the Judge’s fact finding exercise. The correct test in law has been applied. The decision does not contain a material error of law.
22. The Judge’s decision, when read as a whole, sets out findings that are sustainable and sufficiently detailed and based on cogent reasoning.
23. No material errors of law have been established. The Judge’s decision stands.

DECISION
24. The appeal is dismissed. The decision of the First-tier Tribunal stands.

Signed Date 17 March 2017

Deputy Upper Tribunal Judge Doyle