Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10898/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 22 February 2017
On: 13 March 2017

Before

Deputy Upper Tribunal Judge Mailer

Between

Mr M U J
anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Mr N Fazlani, Duncan Lewis & Co Solicitors
For the Respondent: Mr P Singh, 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 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.
2. The appellant is a national of Afghanistan, whose date of birth was assessed to be 1 January 1996. His appeal against the decision of the respondent dated 6 October 2016 refusing his asylum, humanitarian protection and human rights claims was dismissed by First-tier Tribunal Judge O'Garro in a decision promulgated on 7 November 2016.
3. Judge O'Garro considered “as a preliminary issue” the application of Mr Fazlani who sought to renew the appellant's application for an adjournment.
4. Two earlier written applications to adjourn the hearing listed for 31 October 2016 had already been refused. The first application, made on 21 October 2016 was to enable the appellant to obtain an expert report regarding physical evidence of torture by the Taliban. That had been considered by a Judge of the First-tier Tribunal, who refused the application on 24 October 2014. The Judge stated that “in the light of the credibility issues in this appeal”, the instruction of the expert appears speculative [50].
5. The second application, which was made two days later, on 26 October 2016, advanced the same grounds and nothing further was added. The Judge considered that application but maintained the refusal. He stated that the fresh application added nothing of substance to the earlier request and that the appellant had been in the UK long enough to prepare his asylum application.
6. Before Judge O'Garro, Mr Fazlani again relied on the same grounds that were already set out in the written applications. He had nothing further to add.
7. Judge O'Garro found that in the light of the earlier refusals by her colleagues and in the absence of any additional evidence or submissions for her to consider, there was no benefit in reconsidering the matter and was satisfied that the appeal could be justly determined.
8. She stated that she had assessed the appellant's evidence with care and anxious scrutiny, examining his own evidence and the objective material. His claim was that he would be at risk if returned to Afghanistan because he is at risk of harm from the Taliban who wanted to recruit him. He also feared a man who has a feud with his father [58].
9. She noted that there was clearly a dispute about his age. There was an age assessment report which determined that he was born on 1996 which meant that when he claimed asylum in January 2015 he was already an adult. There was no documentary evidence in support of his claimed date of birth. He remembered his mother telling him of the date. He also stated in his statement that he remembered being asked his age when he claimed asylum in Austria and contacted his brother who told him that a Taskara had been made for him in Afghanistan and this stated that he was 14 years old [61].
10. The Judge directed herself in accordance with authorities. She found that there were too many inconsistencies around his claimed age. If he was born in 1999 then as at October 2012, which is when he claimed asylum in Austria, he would have been aged 13. He also stated in his statement that he was the second eldest child in the family yet claimed in another paragraph of the same statement that he contacted an older brother to confirm his age and was told that he was 14 then [68].
11. There was no documentary evidence of the date of birth provided. She did not find him credible about his claimed age. He had accordingly not discharged the burden on him relating to his claimed date of birth.
12. Judge O'Garro found, having considered other evidence, that it is more likely than not that he is over the age of 18. There was a Merton compliant age assessment which assessed his date of birth to be 1 January 1996, which she accepted as his date of birth.
13. Accordingly when he made his asylum application he was already an adult [72]. She would not therefore consider his asylum claim as that of a minor [72].
14. She had regard to the substance of his claim from paragraph 73 onwards. Although background evidence found in the appellant's documents point to credible reports that the Taliban and other insurgent forces recruited children younger than the appellant, in some cases as suicide bombers, she found that there were so many discrepancies in the various accounts given by the appellant, as noted by the respondent, as well as the age assessment report, that it is very difficult to accept that he was kidnapped and tortured by the Taliban as claimed. [74].
15. She did not find it credible with regard to this aspect of his claim that he would have survived at the delicate age of 5 or 6 being thrown off a mountain. It was also not credible that having escaped the Taliban, his family would let him return home to live in a place where the Taliban was in control according to his own evidence, for a further three months [75].
16. She had regard to the Rule 35 report which again showed a discrepancy raising further doubts about his credibility. The report mentioned Pakistan and not Afghanistan as where the incident occurred. The report was based upon what the appellant told the doctor. The scars noted by the doctor could have been caused in many other ways beside torture. She therefore found his account to be a fabrication and gave the report no weight.
17. Judge O'Garro held that if the appellant's father was a police officer for the Afghan government, he would not have been able to live in the village for any length of time, as such, having regard to the background evidence relating to Taliban threats and intimidation in respect of persons perceived as supporting or working for the Afghan government and foreign governments in Afghanistan. The appellant had in fact stated that there is no government in the area he lived in [78]. His father would have been killed if he had refused to give up his job long before the appellant left Afghanistan [78]. She did not accept that the appellant's father was in the Afghan police force or that he had disappeared since the appellant left Afghanistan. Nor did she accept that there was a family feud.
18. She considered whether the appellant could be returned safely to Afghanistan as an adult over the age of 18. She referred to AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 at paragraph 243.
19. In considering his relocation to Kabul, she took into account that he is an adult and is fit and well. He will be given some support to assist him in being re-integrated [85]. He had shown his strength, determination and resilience. This will assist him in becoming re-integrated into Afghanistan. [86]
20. It is more likely than not that he will make contact with his family who still reside in Afghanistan. They will provide him with any support he needs [87].
21. She dismissed his application under Article 8, finding that there were no compelling circumstances warranting consideration of his claim outside the rules.
22. On 11 January 2017 Deputy Upper Tribunal Judge Taylor granted the appellant permission to appeal. It had been contended that the Judge acted unfairly in failing to adjourn the appeal in order to give the appellant an opportunity to produce an Istanbul compliant medico legal report. It was claimed that his representatives had attempted to obtain a report in time for the hearing but were unable to do so. They then acted promptly in seeking an adjournment. There was evidence before the Judge from a medical practitioner in the Rule 35 report that his scars were consistent with torture. In the circumstances, it was arguable that he had been unfairly deprived of an opportunity to address the credibility issues.
23. Mr Fazlani relied on his grounds seeking permission. The main ground related to the refusal to grant an adjournment. He referred to the two early requests for an adjournment that had been made. An attempt had been made to obtain a report in time.
24. He also sought to introduce evidence obtained after the decision in which a medical assessment of the appellant now indicated that the appellant's scarring is “diagnostic.” That would have addressed any credibility issues raised. Mr Singh objected to the admission of that report in the appeal. I refused to admit the evidence at the appeal. No proper application had been made pursuant to Rule 15(2A) of the Tribunal (Upper Tribunal) Rules 2008.
25. The second ground of appeal relates to the assertion that the Judge misdirected herself in attaching no weight to the Rule 35 report. Finally, the Judge misdirected herself by attaching no weight to the age assessment report given that the purpose of such a report is independent medical evidence of the appellant's scarring.
26. Finally, she misdirected herself as to the weight to be attached to the statements the appellant made in interviews with the Sheffield Social Services when assessing the appellant's credibility. The purpose of the interview is to assess his age and is not for an examination of asylum claims. Nor were the statements made and signed by the appellant, read back to him and verified by statements of truth.
27. In reply, Mr Singh submitted that the decision to refuse an adjournment was lawful in the circumstances. Judge O'Garro has properly directed herself in deciding the request for an adjournment. When the applications which had been earlier been refused simply repeated at the hearing, there was nothing further added to the earlier applications.
28. There was not a complete absence of medical evidence in the circumstances. The Judge did consider the appellant's scarring in terms of that report.
29. Finally, he submitted that the Judge made sound adverse credibility findings which, having regard to the appellant's own evidence, are sustainable.
Assessment
30. I have had regard to the decisions relating to the requests for an adjournment made on 24 October 2016 and 26 October 2016. This has been set out in full by Judge O'Garro from paragraphs [49-54].
31. The first request was made on 21 October 2016 but was received by the Tribunal on 24 October 2016. The adjournment was sought in order for the appellant to obtain an expert report regarding physical evidence of torture by the Taliban. It was refused on 24 October. The Judge noted that in the light of the credibility issues in this appeal, the instruction of an expert appears speculative.
32. On 26 October 2016, a second application was made based on the same grounds. That decision was maintained. The fresh application added nothing of substance to the earlier request and the appellant had been in the UK long enough to prepare his asylum application.
33. On the morning of the hearing, Mr Fazlani relied on the same grounds. He expressly stated that he was relying on what was set out in the earlier written applications and had nothing further to add.
34. Judge O'Garro considered the application and found that with there being no additional evidence or submissions for her to consider, there was no benefit in reconsidering the matter again. She was also satisfied that the appeal could be justly determined [54].
35. It is difficult to see what other conclusion Judge O'Garro could have arrived at in the circumstances. In the absence of any matter that had not previously been advanced as a reason for the adjournment, the refusal to adjourn was lawful. She was also satisfied that the appeal could be justly determined [54].
36. Nor do the other grounds have merit: Judge O'Garro has considered the Rule 35 report. She noted the discrepancy in the report raising further doubts about the appellant's credibility. It mentioned Pakistan and not Afghanistan where the incident was supposed to have occurred. Further, it was based upon the appellant's account. As she found that his account was a fabrication, she gave the report no weight. In so finding, she accepted that the scars noted by the doctor could have been caused in other ways besides torture. She properly took into account the reports from the Sheffield Social Services.
37. In the circumstances the appellant was not unfairly deprived of an opportunity to produce an Istanbul compliant medico legal report. The grounds amount to a disagreement with the Judge's findings, which were sustainable on the evidence before her.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of any material errors of law. It shall stand.
An anonymity direction is made.

Signed Date 11 March 2017
Deputy Upper Tribunal Judge C R Mailer