Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11517/2018

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 31 July 2019
On 8 August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

H T H
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J Howard of Fountain solicitors
For the Respondent: Mrs H Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS

1. To preserve the anonymity direction deemed necessary but the First-tier Tribunal, I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Boylan-Kemp MBE promulgated on 16 January 2019, which dismissed the Appellant's appeal.

Background

3. The Appellant was born on 12 October 1986 and is a national of Iraq. On 21 September 2018 the respondent refused the appellant's protection claim

The Judge's Decision

4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Boylan-Kemp MBE ("the Judge") dismissed the appeal. Grounds of appeal were lodged and on 14 March 2019 Upper Tribunal Judge Grubb granted permission to appeal stating inter alia

2. Ground 1: It is arguable, on the basis of the grounds, that the Judge erred in law by failing to take into account the supporting evidence in a witness statement at page 28 of the bundle. At this stage, it is arguable that this was material but the materiality of any error will need to be established.

3. Ground 2: It is also arguable that the Judge may not have been entitled to give the weight that he did it to a newspaper report relied on by the respondent which - so far as the grounds contend - a full copy of which was not put in evidence. It is arguable that its reliability was not established. This, together with its materiality, will need to be explored at the hearing.

4. For these reasons, permission to appeal is granted

The Hearing

5. (a) The appellant Mr Howard moved the grounds of appeal. He took me to [18] of the decision. There, the Judge says

The only extra evidence is a letter from his cousin

Mr Howard told me that that is wrong. In the appellant's bundle there is a statement from Donya Raouf Abdullah. Mr Howard told me that the Judge failed to consider that statement and so ignored a crucial part of the evidence.

(b) Mr Howard told me that the Judge erred in law in his consideration of a newspaper article from the Kurdistan Tribune referred to by the respondent at paragraph 55 of the reasons for refusal letter. At [21] the Judge places reliance on a newspaper article even though it is not disputed that the newspaper article was not before the court. The Judge concludes [21] by saying

?there is little reason for me to doubt the accuracy of this information

Mr Howard told me that the primary source of evidence was not before the Judge and the Judge does not adequately explain why he places weight on an assertion made by the respondent.

(c) Mr Howard asked me to set the decision aside and remit this case to the First-tier Tribunal for a hearing of new.

6. For the respondent, Mrs Aboni told me that the decision does not contain errors of law. She told me that the Judge correctly directed himself in law and made findings well within the range of reasonable findings. She told me that the Judge gives adequate reasons for rejecting the appellant's claim. Mrs Aboni told me that the Kurdistan Tribune article (referred to at paragraph 55 of the reasons for refusal letter) is properly referenced, and that the Judge gives adequate reasons for relying on that article. Mrs Aboni asked me to dismiss the appeal and allow the decision to stand.

Analysis

7. At paragraph 49 of MA (Somalia) [2010] UKSC 49, it was said that "Where a tribunal has referred to considering all the evidence, a reviewing body should be very slow to conclude that that tribunal overlooked some factor, simply because the factor is not explicitly referred to in the determination concerned". McCombe LJ in VW(Sri Lanka) C5/2012/3037 said "Regrettably, there is an increasing tendency in immigration cases, when a First-tier Tribunal Judge has given a judgment explaining why he has reached a particular decision, of seeking to burrow out industriously areas of evidence that have been less fully dealt with than others and then to use this as a basis for saying the judge's decision is legally flawed because it did not deal with a particular matter more fully. In my judgment, with respect, that is no basis on which to sustain a proper challenge to a judge's finding of fact"

8. At [8] of the decision the Judge lists the evidence that he considered. He lists four items - including the appellant's 436 page bundle and the oral evidence of the appellant. The appellant's 436 page bundle contains the witness statement of Donya Raouf Abdullah. Mr Howard told me that Ms Abdullah did not attend the hearing and did not give evidence. The Judge says he considered 436 pages of documentary evidence. There is no good reason for me to go behind what the Judge says at [8] of the decision.

9. It would have been helpful if the Judge mentioned Ms Abdullah's witness statement at [18], but he clearly says at [8] that he has considered it.

10. The second ground of appeal relates to the Judge's treatment of the reference to an article from the Kurdistan Tribune at paragraph 55 of the reasons for refusal letter. Mr Howard focused on [21] of the decision. There, the Judge (perhaps carelessly) says that there is little reason to doubt the accuracy of what is said in the reasons for refusal letter. Even if the last 14 words of the paragraph are deleted, the paragraph would still make sense. What the Judge is saying is that the respondent's information is properly referenced, and all parties have had fair notice of the newspaper article.

11. At [22] the Judge rejects the appellant's account, but goes on to say that even if what the appellant says is true, there would be no risk on return because background information indicates that Dana Majid, the former governor of Sulaymaniyah, has had his conviction quashed and has returned to Sulaymaniyah.

12. The foundation of the appellant's protection claim is that he was closely associated as secretary to Dana Majid. Dana Majid is a significant political figure. Dana Majid had a sentence of six years imprisonment quashed and he then deemed it safe to return to Sulaymaniyah. At [21] & [22] of the decision the Judge reasons that if a leader of the Goran party is safe in IKR, then there can be no risk to the appellant if he is a member of the Goran party or an employee of Dana Majid.

13. It must be remembered that the Judge's primary finding is summarized at [19], where the Judge rejects the appellant's account. What the Judge says at [21] and [22] are findings in the alternative.

14. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

15. A fair reading of the decision demonstrates that the Judge applied the correct test in law. The Judge carried out a holistic assessment of all of the evidence. There is nothing unfair in the procedure adopted nor in the manner in which the evidence was considered. There is nothing wrong with the Judge's fact-finding exercise. The appellant might not like the conclusion that the Judge arrived at, but that conclusion is the result of the correctly applied legal equation. The correct test in law has been applied. The decision does not contain a material error of law.
16. The decision does not contain a material error of law. The Judge's decision stands.
DECISION
17. The appeal is dismissed. The decision of the First-tier Tribunal, promulgated on 16 January 2019, stands.
Signed Date 5 August 2019
Deputy Upper Tribunal Judge Doyle