Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07201/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 26 March 2018
On 30 April 2018

Before

UPPER TRIBUNAL JUDGE LANE

Between

A G K
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Khan, instructed by Parker Rhodes Hickmotts Solicitors
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, AGK, is a male citizen of Iran. His age is disputed. He claimed asylum in January 2016 but his application was refused by the Secretary of State on 29 June 2016. He appealed to the First-tier Tribunal (Judge Moxon) which, in a decision promulgated on 27 March 2017, dismissed his appeal. He now appeals, with permission, to the Upper Tribunal.
2. The grounds of appeal challenge the judge's decision in a number of respects. At [49], Judge Moxon wrote:
"I note that the appellant did give some, albeit limited, information in relation to the PJAK. The level of knowledge could easily have been learned especially in light of the appellant having lived most of his life in Iran. I found the lack of general knowledge of PJAK has undermined the appellant given that he asserts that he inactively supported them for almost a year. His purported commitment to the cause had been such that he knowingly risked his life. Whether literate or not I find he will have sought to obtain as much information as possible from, for example his friends, who he claims were also involved. I accept the respondent's submission that it is implausible that he did not know whether O was a member of the PJAK or not given that it was O who influenced him to assist the party and with him that he had done so for almost a year."
3. The judge is challenged on the basis that he has substituted his own reasoning for that of the appellant himself. In particular, the judge failed to realise the wide support enjoyed by the PJAK.
4. I find that the ground has no merit. I shall deal with the question of the appellant's age later, but I am satisfied that the judge has taken into account the appellant's youth and has viewed all the evidence holistically before reaching any findings of fact. In particular, it was open to the judge to find that, had the appellant been an active supporter of the PJAK and willing to place his own life at risk in support of the organisation, then he would have had a greater knowledge of the organisation. The judge points out, that finding is made irrespective of the question as to whether the appellant is literate or not. The ground is little more than a disagreement with a finding which was open to the judge.
5. At [50], Judge Moxon wrote:
"I also find it significantly undermines the appellant's credibility that he has not had any political involvement since arriving in the United Kingdom which is over twelve months ago. Whilst I accept the submissions that he has been encouraged by another in Iran it is clear from his evidence that he strongly supports the pro-Kurdistan cause and he risked his life for a prolonged period in Iran to support them. This risk signifies strong feelings towards the cause. I find it damaging to his credibility that he has not undertaken any research as to how he could become involved in the United Kingdom. Even if his account of being illiterate were accepted, he could have had no doubt to ask the people who have supported him in the United Kingdom since his arrival over a year ago. I therefore reject his assertion that his failure to become involved in pro-Kurdistan activity in the United Kingdom was because he had no assistance and also reject his assertion that he has a lack of time to become involved, given that he appears to have more spare time now than he did when he was actively involved in Iran."
6. The grounds make the somewhat obvious point that the appellant claims that his activities in Iran rather than in the United Kingdom have exposed him to risk. However, that misses the point which the judge is making at [50]. It was open to the judge to draw attention to the fact that an individual claims to be an ideologically committed supporter of Kurdish rights in Iran should have apparently done nothing to become involved in that cause whilst in the United Kingdom. The judge has not "required the appellant to demonstrate sur place activities" (as the grounds assert); rather, he has, having regard to the particular circumstances of this appellant and his claim as regards past events in Iran drawn attention to the fact that the appellant's conduct in the United Kingdom is not consistent with his account of past events.
7. At [51], the judge wrote
"I find the appellant's account of his identity documents to be significantly undermining to his credibility. He was asked by documentation in his screening interview and clearly indicated that it should be at home [in Iran]. However, he has subsequently stated that he knew his documentation had been taken and that he knew this before he reached the United Kingdom and therefore substantial period prior to that interview."
8. The grounds of appeal complain that the judge failed to have regard to the appellant's "likely condition at the time of his screening interview". There was nothing before the First-tier Tribunal which indicated that the appellant's condition at the screening interview should in any way have affected the answers which he gave. It is not for the judge to assume that the appellant had problems at the interview if he has given no evidence to show that that might be the case. The judge correctly concluded that the appellant had given inconsistent evidence. Quite properly, the judge found that the inconsistent evidence impacted his credibility as a witness.
9. As I have noted above, there was a dispute as to the appellant's age. The Secretary of State considers that the appellant is aged over 18 years. The appellant claims that he was a minor when he entered the United Kingdom and been born on 12 January 1999. At [30-31], the judge indicated to the parties and their representatives that he found that there was "no evidence ? that [the appellant] had ever been inconsistent about [his claimed date of birth]. The respondent had considered that the appellant had been born in or around January 1997. For the purposes of the hearing, the judge stated explicitly that he would treat the appellant as a minor which I take it to mean that the judge intended to adopt court procedures appropriate to an individual who was under 18 years old. Later in the decision [54] the judge concluded that the appellant was not a minor. The grounds complain that that finding was against all the evidence and that the judge has applied an inappropriate standard of proof in determining the appellant's age.
10. I find that the ground has no merit. The judge did not arguably err in law by treating the appellant as a minor for the purpose of the hearing; indeed, if the judge had determined the appellant's age before he had considered all the relevant evidence, he may well have erred in law. It was open to the judge to make a finding as to the appellant's age. He did so having heard all the evidence and, crucially, having properly taken all the evidence into account in a holistic way, as he makes clear at [54]. The appellant has failed to show that any part of the procedure adopted by the judge which was flawed by legal error.
11. In the circumstances, this appeal is dismissed.
Notice of Decision

This appeal is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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 their 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.

Signed Date 20 April 2018

Upper Tribunal Judge Lane

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 20 APRIL 2018

Upper Tribunal Judge Lane