Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/11760/2018

THE IMMIGRATION ACTS

Heard at Fox Court
Decision & Reasons Promulgated
On 12th February 2019
On 19th March 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

C M N B
(ANONYMITY direction MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Chakmakjian of Counsel, Leonard & Co Solicitors
For the Respondent: Ms J Isherwood, Senior HOPO

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Manyarara, promulgated on 29th November 2018, following a hearing at Hatton Cross on 5th November 2018. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a female, a citizen of Cameroon, and was born on 20th November 1978. She appealed against the decision of the Respondent dated 20th September 2018 refusing his claim for asylum and for humanitarian protection pursuant to paragraph 339C of HC 395.
The Appellant's Claim
3. The essence of the Appellant's claim is that she had an abusive stepfather which resulted in the Appellant disliking men. From the age of 5 she was raised by her grandmother. She had been kicked out of her mother's home. At the age of 13 she went to live with her aunt and her cousins. She stayed there until she was 26. She began to be attracted to other girls as she was growing up. None of her school friends knew, when she was age 13, that she was a lesbian. At the age of 26, she told her cousin that she was a lesbian. This was because her cousin had noticed her behaviour and had asked her. She had trusted her cousin with a secret. However, in 2004, her cousin told everyone about her sexuality. This meant that the Appellant could no longer continue to live with her aunt. She was forced to return to her grandmother's home. Her family decided she needed to have sex with men in order to help her family's reputation, and to protect her from the public. Her grandmother kept her locked up in a room and tied her to a bed. She was forced to have sex with men and she fell pregnant in 2010. She has three children. They are in Cameroon.
4. In 2005, she met a lady by the name of Helen at a church and they began a friendship. Helen made the first move. The Appellant found Helen attractive. Helen is the only person that the Appellant has been in a relationship with in Cameroon. When her grandmother was less controlling, the Appellant fled her grandmother's home and she was able to leave Cameroon in July 2016 after a male neighbour had reported her to the police following an altercation involving her children. Her neighbour found out she was gay because she lived in a terraced house. He may have heard her grandmother talking to her friends about her sexuality. Everyone kept their doors open. She was arrested and shown a warrant with a stamp. She does not have evidence of the warrant. Her half-brother then paid a bribe for her release. She spent three days in a cell. She was forced to return home. However, her half-brother arranged for an agent to take her out of the country. (See paragraph 10 of the judge's determination of this account).
The Judge's Finding
5. The judge did not find the Appellant to be credible. The judge came to this conclusion for the following reasons.
6. First, it was not credible that the Appellant's sexual orientation arose at the age of 5 because of her abusive stepfather, which caused her to be drawn away from men and towards other girls (paragraph 47).
7. Second, it was not credible that the Appellant would have told her cousin in secret given that the cousin then went on to betray the information that been given to her (paragraph 48). It was also not credible that the Appellant had been subsequently held captive by her grandmother in order to protect her from the community. Whilst it could be argued that the entire neighbourhood knew of the reason why the Appellant had moved from her aunt's house to the grandmother's house in another area, it was not credible that the grandmother spoke openly about the Appellant's sexuality to others (paragraph 50).
8. Thirdly, the claim that the Appellant's grandmother found out about her relationship with Helen was not credible given that the grandmother then gave the Appellant freedom to go wherever she wanted. This was despite the fact that such freedom only occurred when the Appellant was pregnant (paragraph 51). In fact it was not credible that the Appellant then continued to return to her grandmother's home despite being granted freedom during pregnancies (paragraph 51).
9. Fourth, the Appellant had continuously added to her claim, up to an including the appeal hearing, and the Appellant had departed from much of her original claim, "inasmuch as she has now described numerous arrests and detentions by the authorities in Cameroon, as opposed to a single incident that triggered her departure from Cameroon" (paragraph 53).
Grounds of Application
10. The grounds of application state that the judge erred for three reasons. First, there was a failure to consider the material evidence. Second, there was a failure to consider the objective evidence relating to risk. Third, the judge's approach to credibility issued contrary to credence was on plausibility, which led to an irrational decision.
11. On 31st December 2018, permission to appeal was granted on the basis that, if it was argued that the judge reached a conclusion that was unsustainable in stating that there was a "sustained campaign of arrest and detention that she only raised towards the end of her cross-examination" (see paragraphs 53 to 56), this failed to take into account the fact that the Appellant during her asylum interview (at question 65) had said that, "I was in a cell for three days. And before this I was arrested several times and my name is at all the police stations".
12. The judge had not made any reference to this answer. It was not mentioned in the refusal letter either. Given this was the case, the Appellant need not have referred to this expressly in the witness statement, since it had already been stated in the asylum interview. Therefore, the conclusion (at paragraph 55) that the Appellant has sought to embellish her account was unsustainable.
13. Permission to appeal was granted on 31st December 2018.
Submissions
14. At the hearing before me on 12th February 2019, Mr Chakmakjian, of Counsel, relied upon the Grounds of Appeal. He submitted that the credibility findings amounted to an error of law because they took no account of the evidence of the Appellant during her asylum interview. Moreover, the findings failed to refer to the authoritative guidance in KB and AH (credibility - structured approach) Pakistan [2017] UKUT 491. In that case, the Tribunal had referred to the well-known authority in HK v SSHD [2006] EWCA Civ 1037 where Neuberger LJ had stated (at paragraphs 28 to 30) that,
"In many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other family factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any)" (see paragraph 28).
15. Moreover, it was also said:
"Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be preferable to societies with customs and circumstances which are very different from those of which the members of the fact-finding Tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country would be wholly unfamiliar ?" (paragraph 29).
16. Indeed, Neuberger LJ had stated (at paragraph 28) that:
"the need to consider factors relate to plausibility along with 'other familiar factors ? such as consistency' is also illustrative of the need to avoid a basic credibility assessment on just one indicator. We would add that even when focusing just on plausibility, it is not a concept with clear edges. Not only may there be degrees of (IM) plausibility, but sometimes an aspect of an account that may be implausible in one respect may be plausible in another" (see paragraph 30).
17. Mr Chakmakjian went on to say that the judge had rejected (at paragraph 49) may be implausible in one respect may be plausible in another" (see paragraph 30).
18. Mr Chakmakjian went on to say that the judge had rejected (at paragraph 49) the Appellant's claim that she was held captive by her grandmother, and forced to have sex with men. However, the judge failed to consider the plausibility of the account by reference to the guidance in HK, together with the objective evidence relating to the societal practise of "corrective rape" in Cameroon. The Appellant relied on a news article, dated 2nd October 2018, reporting on a study that up to one in five lesbians in Cameroon had been subjected to sexual violence. The report confirmed that, "... queer women and girls in Cameroon face violence and 'corrective rape' often orchestrated by their own family members".
19. For her part, Ms Isherwood submitted that there was no material error of law. A striking feature of this appeal was that the Appellant had added new bits of evidence as she went along. Nowhere is this clearer than the fact that after the hearing had come to an end, the Appellant sent in a statement which she claimed to have already been before the Secretary of State. The hearing had taken place on 5th November 2018. The determination was then promulgated on 29th November 2018. However, the judge had signed off the decision on 22nd November 2018. Yet, without seeking permission to adduce any further evidence, the Appellant had sent in an additional statement of evidence (see page 12 of the bundle) which referred to the Appellant's "arrest" even though no evidence of this had been given previously.
20. In reply, Mr Chakmajian submitted that what the Appellant had done was to send in a statement referring to evidence that was already before the Tribunal. It was not new evidence at all. The translation appears at page 2. The purpose of the additional material was to make it clear that this evidence was already before the authorities.
Error of Law
21. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law, such that if falls to be set aside (see Section 12(1)) of TCEA 2007. My reasons are as follows. First, and most importantly, the judge has come to a very clear view here that the Appellant has not referred to previous arrests in the original claim. (See paragraphs 53 to 56). However, this ignores the fact that during her asylum interview, the Appellant had referred to several arrests (see question 65), alongside the fact that she had been detained in a cell for three days. She made it quite clear that her name was at all the police stations. She had been at pains to emphasise that her name was known to the police (see question 264). She had made it quite clear that the police were arresting people at the bar where she used to frequent (question 265). In these circumstances, it is not correct to say that the Appellant has dishonestly embellished her evidence.
22. Second, insofar as the issue of the Appellant having sent in a statement after the hearing, is concerned, what the Appellant had done was to disclose a statement in French, which she had written in advance of the hearing. In this statement, she had made it clear that she had been arrested on a number of occasions. This document was translated by her solicitors. It was accompanied with supporting statements from the Appellant and a support worker. It was submitted by fax to the Tribunal on 23rd November 2018 (which was the day after the judge had signed off the determination on 22nd November 2018). The cover letter also off this fax reiterated that there had been previous arrests as mentioned by her at question 65 and questions 264 to 265 of the interview.
23. Third, it is also a factual error to say that the Appellant had become aware of her sexuality at the age of 5. The judge states, "I do not accept that this [i.e. the rejection by her stepfather] was a trigger to her discovery of her sexuality at the age of 5". What the Appellant had actually stated (see question 87) was that at the age of 5 she had become aware that "I had no fatherly love because I suffered from the lack of having a father in my childhood". She had then gone on to say (see question 95) that "I said that at the age of 10 I liked the company of girls compared to the company of boys and at the age of 13 that I started desiring girls. But at the age of 5 I did not like to see boys because of my mother's husband's behaviour". Indeed, in assessing this particular aspect of the Appellant's claim, the refusal letter makes it clear (at paragraph 30) that "this is a reasonable explanation as to why you preferred the company of girls at a young age".
24. Finally, the objective evidence does make it clear that there is a practise of "corrective rape" in Cameroon whereby family members often subject an errant woman to rape by other men on account of her being queer. If the Appellant retuned back to her grandmother's house, (which is criticised by the judge at paragraph 51) there was an explanation for this (at paragraph 20) that the Appellant had nowhere else to go to because her grandmother's house was where she lived. Accordingly, for a variety of reasons, there have been a series of irrational conclusions as to fact in this determination.
Notice of Decision
25. The decision of the First-tier Tribunal involved the making of an error on a point of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is remitted back to the First-tier Tribunal, to be determined by a judge other than Judge Manyarara, subject to practice statement 7.2(b).
26. An anonymity direction is made.
27. This appeal is allowed.

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 Juss 15th March 2019