Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07047/2016

THE IMMIGRATION ACTS

Heard at Glasgow on
Determination promulgated on
5 April 2017
6 April 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

BEHNAM BABAEI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr McGlashan, of McGlashan Mackay, Solicitors
For the Respondent: Mr Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The respondent refused the appellant’s protection claim for reasons explained in her letter dated 28 June 2016.
2. FtT Judge Kempton dismissed the appellant’s appeal for reasons explained in her decision promulgated on 10 January 2017.
3. The appellant appeals to the UT on these grounds:
The judge erred in law because (i) she failed to take into account evidence in relation to the risk to the appellant on return of his involvement in relation to tattoos; and (ii) she has not made any proper finding in relation to the summons the appellant lodged and spoke to. The judge correctly identifies the 2 issues in the 1st sentence in paragraph 31:
(i) Tattooing: no account is taken of what the appellant says in the last sentences of paragraphs 3 and 4 of his statement in relation to the attitude of the Iranian authorities to tattoos. The judge has not accepted the appellant’s account of being in prison is true (paragraph 36) but says nothing in relation to whether she accepts as true what the attitude of Iran is to people with tattoos [or who] have an interest in tattoos. In the absence of any such finding it is an error include that he will not be at risk on return.
(ii) Summons: the judge criticises reliance on this document because “… there is no evidence of use of alcohol in the appellant’s account” (paragraph 33). This is wrong: see the 2nd sentence in paragraph 8 of the appellant’s statement. No other criticism of the summons is founded on by the judge. She accepts that possession of alcohol in Iran can lead to severe punishment (paragraph 32) so the provenance of the summons was extremely important. In making an error of fact as to the appellant’s knowledge and when he gained that knowledge, she has as a result erred in law in relation to a material issue – viz, whether the appellant would be at risk on return to Iran on account of possession of alcohol.
4. Further to ground (i), Mr McGlashan said that the appellant gave evidence that he has a tattoo on his foot, but the judge declined to look at it, and there was evidence of the negative attitude of the authorities towards tattooing. He accepted that the appellant did not say that the tattoo had ever come to the attention of the authorities, but suggested that if it did, given the history, that would be a serious matter for the appellant.
5. I indicated that I found nothing in ground (i) to amount to error on a point of law. There was no evidence that (a) the existence of a tattoo on the appellant’s foot was likely to come to attention of the authorities or (b) even if it did, that might attract consequences at the level of persecution.
6. Further to ground (ii), Mr McGlashan submitted that the judge misunderstood or overlooked the appellant’s evidence in his statement about possession and use of alcohol, a matter which should have been taken to support the evidence in the summons; and that possession of alcohol had serious consequences, the penalty being flogging.
7. Mr Matthews submitted that this ground was only reargument of the facts; ¶33 contained no error of fact; the judge was right to say that there was no evidence from the appellant that he used alcohol; the judge was plainly aware that possession of alcohol, through the appellant’s friend, was part of his case; the ground was misleading in suggesting there were no other reasons for rejecting the summons; the judge gave several other reasons, all open to her, and in which no error was suggested – absence of reference in the summons to the tattooing equipment also allegedly in the bag, no production of the letters which allegedly followed on the summons, production of a scanned email copy only, not the original, and no apparent concern over monitoring of family communications.
8. I reserved my decision on ground (ii).
9. ¶8 of the appellants’ witness statement includes the following:
“Before we got to [the roadblock] Ali told me not to stop I said why he said he had alcohol in his bag ... for us to have a drink … unknown to me, but I sped through …”
10. Mr McGlashan confirmed that was all the evidence about “possession” of alcohol.
11. ¶33 of the FtT decision says:
“… the appellant denies any knowledge of alcohol. It is his position that his friend did not tell him about it until he saw the roadblock. He only has his friend’s word that it was in his friend’s bag. He has produced a summons which refers to alcohol possession and use. However, there is no evidence of use of alcohol in the appellant’s account. Accordingly, that casts some doubt on the veracity of the summons. In addition, the appellant said he had a tattoo gun in his bag, yet it is not mentioned in the summons…”
12. Having looked at the underlying materials, I prefer the submissions for the respondent, essentially for the reasons advanced by the presenting officer.
13. The ground does not fairly represent either the evidence or what the judge made of it. The judge understood that the appellant’s position was that he had no knowledge until the point when his friend told him. His evidence did not go directly to use of the alcohol. His evidence was of some degree of possession, not of use. The respondent was also correct in pointing out that contrary to the ground the judge gave other reasons for not taking the summons as support for the appellant’s case.
14. The grounds are only disagreement with the outcome of the case. They fail to disclose that the making of the decision by the FtT involved the making of any error on a point of law. That decision shall stand.
15. No anonymity direction has been requested or made.

5 April 2017
Upper Tribunal Judge Macleman