Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09852/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 February 2017
On 23 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

rU
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr P Richardson of Counsel instructed by Abbey Law
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS

Background
1. The appellant in this case is a citizen of Bangladesh who was born on 1 January 1992. He applied to the respondent for asylum on 4 March 2016, that decision being refused on 2 September 2016. The appellant's appeal to the First-tier Tribunal was dismissed, in a decision promulgated on 2 November 2016, by First-tier Tribunal Judge Moxon.
2. The appellant applied for permission to appeal. In a decision by Upper Tribunal Bruce dated 7 January 2017 permission was granted.
3. The grounds of application for permission to appeal, pursuant to Rule 21(2) of the Upper Tribunal Rules, were made on two bases:
(1) It was stated that the First-tier Tribunal's findings were deficient in two respects. The first was that the "FtT omitted to give adequate reasons for its finding that the evidence of Mr A was not reliable".
(2) Secondly, "the FtT's findings that the evidence of Mr A was not reliable, that the applicant had deceived the immigration authorities, and that the Viber messages were not reliable, were completely unreasonable to the point of rendering its conclusion to the applicant's sexuality perverse".
4. Judge Bruce summarised the grounds including the submission that the Tribunal had acted irrationally in disbelieving that the appellant was gay because he was alleged to have previously relied on an ETS certificate obtained by fraud. Had that been the reasoning, it would indeed have been perverse. However I share the conclusion of Judge Bruce that that was not why the Tribunal disbelieved the claim as to the appellant's sexuality, which was rejected because he had made an asylum claim very late, and because his evidence contained a number of discrepancies. These findings were not perverse.
5. However Judge Bruce stated that it was arguable that the Tribunal failed to consider the evidence in the round and failed to give adequate reasons, which was particularly so in respect of the evidence of Mr A.
6. Mr Richardson sought to persuade me that, in addition to the argument in relation to the findings of Mr A's evidence, the grounds of permission contained a wider application in relation to the adequacy of the reasons of Judge Moxon on credibility generally. I reject that submission.
7. The fact that the grounds of permission set out the reasons for the judge to conclude as he did at paragraphs 6 and 7 does not change the fact that the grounds for permission to appeal were very clearly set out at paragraph 8 of the grounds of permission to appeal: these were firstly in relation to the adequacy of the reasons for finding that Mr A's evidence was not reliable and secondly a perversity challenge. That perversity challenge was rejected by Upper Tribunal Judge Bruce and was not pursued by Mr Richardson before me. There was no application made to amend the grounds of permission to appeal. The First-tier Tribunal had already rejected the wide-ranging grounds of permission to appeal and these were quite properly not renewed before the Upper Tribunal. The arguable grounds before me therefore were limited to a challenge to the adequacy of the reasons in relation to the evidence of Mr A.
Error of Law Discussion
8. Mr Richardson pointed out that at [14] of the decision and reasons Judge Moxon noted that Mr A had attended to give evidence but had left before the case was called as he had to open his shop at 11:00am. The judge indicated that he had not been told that he needed to leave early, otherwise he would have "made evidence to accommodate him [sic]". The judge also indicated that there was no application to adjourn and that Mr A not giving oral evidence did not undermine the weight that he gave to the evidence within his statement.
9. Mr Richardson noted that the judge recorded at [34] that the appellant had stated in oral evidence that he is not in a relationship and that the judge recorded that this was inconsistent with the statement of Mr D A dated 17 October 2016 in which he says that they have had a casual sexual relationship for three months. The appellant however stated that they were "friends with benefits" and that he would not describe that as a relationship.
10. Mr Richardson submitted that it follows that if Mr A's evidence was accepted that it was a great deal more likely that the appellant was gay. Mr Richardson took me to [52] of the decision and reasons where Judge Moxon found that in the light of all the adverse credibility findings he did not find Mr A's witness statement to be reliable. This followed Judge Moxon setting out, at [51] of the decision and reasons, the guidance in the Upper Tribunal case of Tanveer Ahmed [2002] UKIAT 00439.
11. Mr Richardson submitted that although the judge had directed himself that all the evidence had to be considered in the round it was his submission that the judge then went on at [52] not to follow this approach and to reject Mr A's evidence in light of the adverse credibility findings.
12. In reply Mr Staunton submitted that the grounds of appeal for permission to the Upper Tribunal were solely on the basis of the findings in relation to Mr A's evidence. Mr Staunton submitted that a holistic view of the findings of Judge Moxon revealed no error. At [22] of the decision and reasons the judge noted that there was no documentary evidence of the appellant's claimed relationship with a Mr S. At [24] the judge also noted that there was no evidence to support the claimed relationship with Mr M H from 2009 to 2011, and at [25] the judge noted deficiencies in the appellant's evidence in relation to his claimed relationship with Mr M I. It was Mr Richardson's submission therefore that Mr Moxon's decision indicated that he had considered all the evidence in the round and then went on at [45] of the decision to note the lack of evidence in relation to the appellant's former partners and to make negative findings in that regard. Mr Richardson submitted that the judge then went on at [48] to properly find the appellant's evidence incredible in relation to Ms Balazoba and that he would have disclosed this claimed relationship when he was served with removal directions.
13. He submitted that it was not unreasonable of the judge to make the findings he did in respect of Mr A and to, in effect, find that the witnesses had colluded to bolster an unmeritorious claim for asylum. Mr Richardson submitted that weight was a matter for the judge and that the grounds before the Upper Tribunal did not go beyond challenging weight and were essentially no more than a disagreement with the judge's findings.
14. I am not satisfied that any material error of law has been made out. The decision of Judge Moxon was carefully and closely reasoned and I am satisfied that a reading of the decision and reasons as a whole discloses that the judge properly considered all the evidence in the round.
15. The fact that his wording at [52] might have been more clearly set out, does not change the fact that he weighed up all the evidence in the round prior to reaching his decision; this is underlined by the fact that he properly directed himself including setting out the relevant law at [4] to [12] of the decision, setting out the burden and standard of proof at [5], [11] and [13], and directing himself correctly as to Tanveer Ahmed at [51].
16. In relation specifically to Mr A's evidence, the judge stated that his failure to give oral evidence did not undermine the weight that he gave to the evidence in his statement. This would suggest therefore that the judge considered the evidence in Mr A's statement. That statement is contained at page 29 of the appellant's bundle before the First-tier Tribunal and consisted of a two-page six-paragraph witness statement. This confirmed that he had known the appellant for approximately three years since their first meeting at a gay club and that they had exchanged telephone numbers and kept in touch regularly and that maybe their similar experiences and backgrounds and empathies had bound them together. Mr A went on to confirm that "over the past three months" we have had casual sexual relations together. The appellant has confided in him about how he was found out by his cousin who told his parents and other family about him being gay. Mr A stated that to live with the knowledge that your own parents have disowned you and are ashamed of you is not easy and leaves you feeling insecure. He went on to state that it is not easy to live with the knowledge that one can never return to Bangladesh, unless one is willing to never be oneself and to live a lie as a straight man. As highlighted by Mr Richardson, the judge considered this witness statement substantively, including at [34] of the decision and reasons, where he noted that the appellant's oral evidence was inconsistent with the witness statement from Mr A which the judge stated was dated 17 October 2016 (although the witness statement before me was not dated and in fact it was the witness statement at page 28 preceding Mr A's statement that was dated 17 October 2016, such a minor error of fact is not material).
17. Reading Judge Moxon's decision in its entirety he gave adequate reasons for the findings he reached rejecting the evidence before him including that of Mr Ahmed and it was open to him what weight he attached to that evidence for the reasons he gave. The grounds of permission to appeal, and indeed Mr Richardson's attempt to expand those grounds, reveal no more than a disagreement with the weight that Judge Moxon attached to the evidence before him.
18. I am not satisfied that any error of law, material or otherwise, has been made out.
Summary of Decision
19. The decision of the First-tier Tribunal does not disclose an error of law and shall stand.

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

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee award is payable or is made given that the appeal is dismissed.

Signed Date

Deputy Upper Tribunal Judge Hutchinson