Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09888/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 April 2017
On 21 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

B B S
(anonymity direction MADE)
Appellant
and

Secretary of state for the home department
Respondent

Representation:
For the Appellant: Mr P Lewis, Counsel instructed by Wesley Gryk Solicitors
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appeals to the Upper Tribunal from the decision of the First-tier Tribunal (Judge Lisa Gibbs sitting at Hatton Cross on 17 October 2016) dismissing his appeal against the decision of the Secretary of State to refuse to recognise him as a refugee, or as otherwise requiring protection, as a gay man.

Relevant Background
2. The appellant is a national of Tunisia, whose date of birth is 22 June 1987. His claim is that he realised he was gay when he was aged 17. He embarked on a relationship with C, who was visiting from the UK, in June 2011. This was also the month in which his parents found out that he was gay. He moved out of the family home into a room which C rented for him in July 2011. His sister brought round his belongings. He stayed in this rented accommodation until 2013. C came out to Tunisia on regular visits.
3. The appellant’s father reported the appellant to the police, as he wanted him to be arrested. However, he did not have any problems with the police until March 2014, when he was caught with C by the police in a hotel in Hommat. He was detained in prison until June 2014. While in prison, he was beaten and raped by the police. Eventually, C procured his release upon payment of a bribe. The police kept his passport, money and documents. He spent three weeks in hospital, and C returned to the UK while he remained in Hommat in a hotel.
4. In March 2015, C returned to Tunisia and both of them went to the British Embassy to seek advice on securing the appellant’s passage to the UK. He was told that he had to have a passport. The appellant then paid money to get a passport made. The appellant returned to the British Embassy in November 2015, and a man there referred him to somebody who gave him the address of a police station where he went to pick up his new passport. He was issued with a visit visa to the UK, and he travelled to the UK on 29 January 2016. He claimed asylum on 9 March 2016.
5. On 5 September 2016 the respondent gave her reasons for refusing to recognise him as a refugee. His account was inconsistent with background information and also internally inconsistent. His claimed partner C gave a different account. So, on the evidence provided, it was not accepted that he had been persecuted in Tunisia because he was gay or that he was a same sex partner of C or that he was gay. The respondent did not express a view on the question whether gay people who lived openly in Tunisia were liable to persecution.
The Hearing before, and the Decision of, the First-tier Tribunal
6. The Judge received oral evidence from the appellant, C and M. In her subsequent decision, she found that there were numerous inconsistencies in the evidence. The account given by C about what had happened in Tunisia was fundamentally different in a number of significant respects from the account given by the appellant.
7. At paragraph [26], she observed that C’s timeline was the he remained in Tunisia for one week following the appellant’s arrest. C then returned to the UK for two weeks before he returned to pay the bribe. He then came again to Tunisia in May 2014 following the appellant’s release from both detention and hospital. This was wholly inconsistent with the appellant’s evidence which was that he was detained on 15 March 2014, released at the end of June, and spent one week in a bungalow and three weeks in a hospital, which would mean that he was not released from hospital until around July 2014. She also found it significant that in his witness statement, M stated that the appellant was detained for one week in Tunisia at his father’s behest, which she said was further inconsistent evidence.
8. At paragraph [30], she found that the appellant and C were unreliable witness who had not been truthful in their evidence. She found that they had sought to mislead her with regard to the core of the appellant’s claim. She said that she had considered whether, notwithstanding these findings, she could be satisfied, to the lower standard of proof, that the appellant was nonetheless gay. She cited the case of Chiver for the following proposition: “It is perfectly possible for the Adjudicator to believe that a witness is not telling the truth about some matters, but exaggerate the story to make the case better, or is simply uncertain about matters, but still to be persuaded that the centre piece of the story stands.”
9. At paragraph [31], she said that she had taken into account the fact that she had before her not one, but two, British citizen men who claimed to have had a sexual relationship with the appellant. But she was not persuaded that this evidence in itself, against the backdrop of the discrepant and dishonest evidence before her, was persuasive, even to the lower standard: “I find that [C] has been complicit in the appellant’s attempt to deceive me with regard to what happened in Tunisia and consequently I cannot rely on his evidence. With regard to [M’s] evidence, I find that he has also shown that he is willing to obfuscate when necessary by failing to mention in his witness statement the fact that he is in a sexual relationship with the appellant.”
10. The Judge went on to find, at paragraph [32], that based on the documentary evidence, she accepted that C met the appellant in Tunisia in 2011, and they had maintained a friendship since that time which had continued in the UK. She accepted that C was gay, and that, “together the appellant and he go out to gay bars in the UK”. But she found that they had shown themselves to be such unreliable witnesses that she could not rely on their friendship as evidence in itself that the appellant was gay. Given those concerns, she did not find that the letters of support provided in the appellant’s bundle – which included a letter of support from a priest, “T” - advanced the appellant’s claim.
The Initial Refusal of Permission
11. On 13 January 2017 First-tier Tribunal Judge Parkes gave the following reasons for refusing to grant permission to appeal:
The Judge found that the evidence contained a number of inconsistencies, particularly with regard to the key event in the account, and that the appellant’s account was not credible and he had not shown that he was in danger in Tunisia.
The grounds argue that the Judge had not given sufficient reasons for rejecting the evidence of the appellant’s witness [M and T] and, in rejecting the appellant’s evidence, had not taken other factors into account. The fact that lies had been told was not sufficient on their own to negate the evidence relating to the appellant’s sexuality, and evidence relating to homosexuals in Tunisia had been disregarded.
The appellant is under obligation to tell the truth, and failure to do so in significant respects, such as with regard to a core incident in an account, can have a seriously detrimental effect on their credibility. While some may form a view of the appellant’s sexuality and be prepared to give evidence of their view (even if they were experts) it is the function of the Judge to consider the evidence overall and the decision has to be read as such. The views of other witnesses, however strongly held, are not determinative of the issue or binding on a Judge. Read as a whole, the decision of the addressed points raised gave adequate reasons for the findings reached. The grounds amount to a well-argued disagreement for findings properly made and open to the Judge for the reasons given.
The Reasons given for the Eventual Grant of Permission
12. On a renewed application for permission to appeal to the Upper Tribunal, in the decision dated 23 February 2017 Upper Tribunal Judge Canavan gave the following reasons for granting permission:
The judge’s findings relating to the reliability of the evidence given by the appellant and [C] regarding past events are not challenged. However, it is at least arguable that the judge might not have given sufficient scrutiny to other evidence that was material to a proper assessment of the appellant’s claimed sexual identity.
The Hearing in the Upper Tribunal
13. At the hearing before me to determine whether an error of law was made out, Mr Lewis (who did not appear below) submitted that the Judge had not given adequate reasons for rejecting the evidence of M, who gave oral evidence. Indeed, he submitted that her rejection of M’s evidence was bordering on the perverse, as M had credibly explained in his oral evidence why he had not previously disclosed his sexual relationship with the appellant, which was because the appellant’s partner C did not know about it. On behalf of the Secretary of State, Mr Duffy submitted that the negative pull of the lies told by the two main witnesses, who were the appellant and C – his claimed partner - was sufficient to override the evidence given by M, whom he characterised as a “tertiary” witness.
Discussion
14. The overarching error of law challenge is that the Judge has failed to take account of relevant circumstances and/or that she has failed to give anxious scrutiny to the asylum claim. Grounds 1 to 3 are put forward as specific examples of this asserted mischief.
15. Ground 1, which Mr Lewis developed, is that the Judge failed to engage with key parts of M’s evidence as to the reasons why he did not disclose his affair with the appellant in his witness statement of 29 September 2016.
16. In this statement, M said that he had met C and his partner, the appellant, when he went to The White Swan, a gay venue in Limehouse. He quickly become friends with C and the appellant, and he would often pop around for a cup of tea as they lived quite near each other. They were always welcome to drop in on him. Over time, the appellant had confided in him about the situation with his family and the police: “As a 50-year-old gay man, there is no doubt in my mind that [the appellant] is gay, and that all that he has told me is true. We have had many long conversations about his circumstances in Tunisia and there is always consistency in what he says.”
17. In the permission application, there is a footnote which says that arrangements were made so that C did not hear the evidence given by M.
18. It is apparent from the Record of Proceedings that the appellant gave evidence first, followed by C and that M was the final witness.
19. It is apparent that Counsel for the appellant was aware, before M gave evidence, that M was going to make the claim that he had had sexual relations with the appellant, despite this not being intimated in his witness statement. Indeed, Counsel for the appellant was aware that the appellant was also going to make the same claim in his oral evidence, although his witness statement for the appeal hearing makes no mention of a sexual relationship with M.
20. I deduce the above from the Record of Proceedings, some of which I canvassed with the parties in the course of the hearing. After getting the appellant to adopt his witness statement as part of his evidence in chief, Counsel asked the appellant supplementary questions, including a question about M. The appellant said that it was more than just a friendship with M. He felt relaxed with M and he had had sexual relations with M. He confirmed that C did not know that he had had sexual relations with M.
21. When M was called as a witness, Counsel asked M supplementary questions in chief about the nature of his relationship with the appellant. He described their relationship as one of close friends who had sex from time to time. M was cross-examined to the effect that he would do anything to help the appellant remain in this country. While not resiling from his evidence that the appellant had slept with him, M agreed that he would help the appellant as much as he could. In re-examination, he was asked why he had not said that he was in a sexual relationship in his witness statement. He said that it was not his intention to embark on sexual relations with the appellant, as the appellant was with someone else and he did not want to make the disclosure. He was asked whether C knew about the relationship. He answered no, but C might suspect it.
22. In closing submissions, Counsel for the appellant characterised M as an independent witness. However, it was clearly open to Judge Gibbs not to treat M as an independent witness, but rather to treat him as a friend who had a motive to misrepresent the truth in order to assist the appellant.
23. Although not cited to me, I have had regard to Muse & Others v Entry Clearance Officer [2012] EWCA Civ 10 on challenges to the adequacy of a judge’s reasons. In South Bucks District Council v Porter (2) [2004] UKHL 33, cited with approval by the Court of Appeal at paragraph [33], Lord Brown said:
The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example, by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need only refer to the main issues in the dispute, not to every material consideration.
24. I consider that it was open to Judge to treat the explanation given by M in re-examination as not being a material consideration which salvaged his general credibility, and as not being a material consideration which required specific comment as part of her duty to give anxious scrutiny to the appellant’s asylum claim. The thrust of the oral evidence given by M was that, both now and at the time that he made his witness statement at the end of September 2016, he believed the appellant to be gay because they had had sexual relations with each other on a number of occasions. In contrast, the clear thrust of M’s earlier witness statement was that his belief as to the appellant’s sexuality was purely based on his observation of him with C and on lengthy conversations which they had had with each other. So, it was open to the Judge to find that the disparity between what M had said in his oral evidence as against what he said in his witness statement was sufficient by itself to make M an unreliable witness, particularly in circumstances where (a) the lies told by the appellant and his friend C supported a finding that the appellant and C had colluded to present a false picture of the appellant’s true sexuality; and (b) the appellant and M must have agreed between them before the hearing that each of them would give evidence of them having had sexual relations with the other, in order to brief Counsel to ask the relevant questions in chief and in order to set up the arrangement by which C was not present when M gave his evidence.
25. Accordingly, I find that Ground 1 is not made out. Mr Lewis did not seek to develop Grounds 2 and 3, and they are inherently weaker than Ground 1. This is because they relate to more peripheral pieces of evidence, such as the letter of support from a priest, T, who has experience of supporting gay asylum seekers and who believes that the appellant is gay. The Judge was not required to refer to every piece of evidence bearing upon the question of whether the appellant was gay.

Notice of Decision
The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.
Anonymity
The First-tier Tribunal made an anonymity order. I continue that order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed Date 18 April 2017

Judge Monson
Deputy Upper Tribunal Judge