Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06982/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 3 April 2017
On: 24 April 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
A C
anonymity direction made
Appellant
and

entry clearance officer
Respondent

Representation
For the Appellant: Mr Z Raza, counsel (instructed by Howe & Co)
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS
1. 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 both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
2. The appellant is a national of Afghanistan, born on 10 November 1991. He appeals with permission against the decision of the First-tier Tribunal promulgated on 11 January 2017 dismissing his appeal for asylum, humanitarian protection and human rights. The appellant had refused to endorse a loan application to persons linked to a well known warlord, Haji Almas, a politician and criminal with extensive power and influence.
3. On behalf of the appellant, Mr Raza, who represented the appellant before the First-tier Tribunal, contended that the central issue in the appeal was the appellant’s credibility. The reasons provided by the Judge for concluding that the appellant was not at risk on return to Afghanistan and was not in fear of his life, were inadequate.
4. Despite the finding by the Judge at [31] that the appellant’s case had changed since the refusal letter, in that his claim was now based on a fear of persecution by state agents rather than non state agents, Mr Raza contended that the claim had been consistent throughout. With the benefit of a report from Dr Giustozzi, the position has “simply been elucidated”. It was unclear from the decision of the Tribunal why the appellant’s credibility had been discredited. This lack of clarity amounts to an error of law.
5. Moreover, the appellant provided a plausible explanation for the alleged discrepancy between the content of the bank letter and the appellant’s oral evidence. When he gave evidence he stated that he had only resumed employment for a period of a week and that the bank had attempted to distance itself from him following the problems he encountered.
6. In the letter at page 48 of the appellant’s bundle, the Maiwana Bank certified that the appellant worked from October 2013 up until July 2014 as a credit assistant in Kabul. The letter goes on to state that “…..after completing his MBA in UK on dated 3 October 2015 he was requested to rejoin the bank, even after acceptance of his request by the bank due to some problem he could not join the bank” (sic).
7. No question was raised as to the veracity of the bank’s letter.
8. At the appellant’s interview he was asked (at question 41) who the people were who wanted the loan and who the people were who were threatening him at the bank. He replied that at that time he had no idea who they were but when they introduced themselves they said they were people who served with Haji Almas. He later on found out that he was a well known commander warlord (Qomandan). “…..In Afghanistan its not a military office its someone who has influence like a local warlord”.
9. At [35] the Judge found that there was little in the appellant's evidence to explain the claimed involvement of Haji Almas in this loan application. There was no evidence of Haji Almas sponsoring these individuals or being involved in any way. There is no reference at all to him or his name being used to pressurise or influence the bank into granting the loan.
10. Mr Raza submitted that the Judge failed to attach adequate weight to the report of Dr Giustozzi which supports the centrepiece of the appellant’s claim. He dealt with the extent of Mr Almas’s involvement with dealings similar to those complained of by the appellant. The Judge’s expectation that there would be clear evidence of such an individual’s involvement is inconsistent with the findings in Dr Giustozzi’s report. Accordingly the Judge applied too high a burden and expressed disbelief on matters that are not only possible but also probable in the context of the appellant’s claim.
11. Mr Raza referred to paragraph 5 of Dr Giustozzi’s report, where he stated that according to a study which he conducted for UNODC in 2015, “….Haji Almas is now one of the three top drug smugglers in Afghanistan, in particularly dominating the northern route through Central Asia”. He maintains his political ambitions. He supported President Ghani in the 2014 elections and is now playing an important role in the reconciliation between the Islamic Party of Gulbuddin Hekmatyar (of which he was once member) and the Afghan authorities, which was agreed in September 2016.
12. Dr Giustozzi stated at paragraph 7 that the practice of sponsoring individuals who try to borrow money from Afghanistan’s banks was common among Afghan politicians. Such borrowing is often fraudulent. The most notorious case of easy loans made under pressure by politicians is that of the Kabul Bank, which eventually collapsed under the pressure of its bad loans.
13. Given the extent of such practices, he asserted that it is plausible that the appellant would have faced a similar situation. Haji Almas does not need to get money out of banks himself but because of his political ambitions, he supports and sponsors gang members and individuals, who will then return the favour by supporting him politically.
14. At paragraph 9 of his report, he noted that the police are known for being abusive, inefficient and corruption is widespread. There has been a lack of political will to proceed beyond recognising and talking about problems of a corrupt, factionalised and criminalised ministry of interior. Evidence of the police’s involvement in corruption is quite overwhelming.
15. Finally, at paragraph 13, Dr Giustozzi stated that it is perfectly plausible that the police may have failed to help the appellant once he was threatened. The question really is whether the associates of Haji Almas would need or want to use violence against him, now that he has left his job. The issue is that having refused to collaborate, the appellant now represents a long term liability for them. If there were another banking scandal, this time at the Maywanda Bank, because the appellant is not compromised he could easily emerge as a key witness in any investigation. Hence they need to eliminate him.
16. Mr Raza also referred to the contention at paragraph 16 of the report that individuals can relatively easily be tracked down around Afghanistan unless they are able to hide indefinitely. Even in Kabul City, private killings can take place and go unpunished. Because Haji Almas operates nationwide with his smuggling network, relocation away from Kabul would not help the appellant.
17. Dr Giustozzi thus concluded that the appellant would be at risk from the gangsters who have been threatening him if he returned to Afghanistan. That is because he is a potential witness of their criminal practices and could represent a direct threat if a new investigation into the banking sector took place. This is most likely since most of Afghanistan’s banks are in a precarious state.
18. Mr Raza submitted that the report of Dr Giustozzi provided an objective foundation for the appellant’s subjective belief. The question was the weight to be attached to the report.
19. He referred to the decision of the Tribunal in AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC). At paragraph [174] the Tribunal noted that Dr Giustozzi has provided reports and given evidence in a number of country guidance cases. In relation to the report he wrote for GS the Tribunal noted at [76] that he has been accepted by the Tribunal as an expert on Afghanistan in a number of previous cases. He has continued to publish material on the conflict in Afghanistan and to visit Afghanistan regularly.
20. In reply, Ms Fijiwala submitted that the Judge has given reasons why the appellant’s claim was not credible. Much is made about the report of Dr Giustozzi. The Judge referred to the expert evidence and was entitled to attach what weight was deemed appropriate. The Judge considered the evidence in its totality and decided to attach little weight to the appellant’s evidence which was open to the Tribunal to do.
21. She accepts that the Judge did not refer to any explanation as set out in the letter at page 48 from the Maiwana Bank. There was no reference in that letter to any probationary period. The Judge accordingly found this to be a problem. The Judge also had regard at [34] to the fact that the appellant did not claim asylum immediately after he returned to the UK in October 2015. All that he had stated is that when he contacted his father he was told that the issue had not been resolved and that he could not return. He had not explained how and why his father told him about this or the reasons for the advice.
22. In any event, at [41] the Judge found that even if the appellant preferred not to return to Kabul, internal relocation would be an option for him. That however has not been challenged. She referred to AK at [253], where the Tribunal found that they had not been helped by the fact that Dr Giustozzi’s assessment was made on the mistaken basis that the appellant had given a credible account of his past experiences.
23. She referred to the first two headnotes from the decision in VV (Grounds of appeal) Lithuania [2016] UKUT 0053 (IAC). She submitted that the Judge gave clear reasons on the points raised.
24. In reply, Mr Raza referred to paragraph 253 of AK, supra. As noted, the Tribunal there considered that Dr Giustozzi assessed the issue of viable internal relocation on the mistaken basis that the appellant there had given a credible account of his past experiences.
25. However, in Dr Giustozzi’s report regarding the appellant, he was not simply believing the appellant’s account. He said he found that it was plausible that Haji Almas does not need to get money out of banks himself but because of his political ambitions he supports and sponsors other gang members and individuals who will then return the favour by supporting him politically. The Judge at [39] however stated that there is no evidence involving Haji Almas in the loan application. If his name had been involved in any way directly, the appellant would have known about this.
26. He submitted that there was therefore an expectation that the appellant would produce “something more”.
Assessment
27. In granting permission to appeal, First-tier Tribunal Judge Andrew was satisfied that there was an arguable error of law. The Judge did not consider with anxious scrutiny the report of Dr Giustozzi which may have contributed to the adverse credibility findings made by the Judge.
28. I have had regard to the submissions by Ms Fijiwala. She has fairly accepted that the Judge did not consider the appellant’s explanation regarding the apparent contradiction between his claim that he was working for the bank in October 2015 and the letter from the bank at page 48 of his bundle.
29. Moreover, it is evident that the appellant did refer during his asylum interview – Q41 – to his belief of the link between those who wanted the loan who stated that they were people who served with Haji Almas.
30. The Judge however did not have proper regard to the report of Dr Giustozzi in which he gave reasons why it was plausibile that the appellant would face pressure on return from persons such as Haji Almas. Although the latter did not need to get money out of the banks himself, he supports gang members and individuals who will favour him politically by giving their support. Moreover, the police are corrupt and inefficient.
31. Dr Giustozzi also stated that Haji Almas operates nationwide with his smuggling network and relocation away from Kabul would not help the appellant. He has given reasons for that assertion at paragraphs 16 and 17 of his report.
32. From the foregoing, I find that the Judge did not give proper consideration to the potential significance of Dr Giustozzi's report. As noted by First-tier Tribunal Judge Andrew such lack of 'anxious scrutiny' might have contributed to the adverse credibility finding made by the Judge. That is particularly so when Dr Giustozzi did not in this case need to base his findings on the credibility of the appellant’s assertions, but on the objective surrounding evidence relating to Mr Almas.
33. In the circumstances, I set aside the decision. Mr Raza submitted that the appeal should be remitted to the First-tier Tribunal for a fresh decision. Ms Fijiwala did not oppose that course.
34. Having regard to the substantial amount of evidence that will have to be led, I find that this is an appropriate case to be remitted to the First-tier Tribunal.
Notice of decision
The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside.
The case is remitted to the First-tier Tribunal (Hatton Cross) for a fresh decision to be made before another Judge.
Anonymity direction continued.

Signed Date 16 April 2017
Deputy Upper Tribunal Judge C R Mailer