Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11951/2018

THE IMMIGRATION ACTS

Heard at Glasgow
On 27 September 2019
Decision & Reasons Promulgated
On 2 October 2019

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

DABAN TOFIQ AHMED GOSHTA
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:

For the Appellant: Mr G Young, of Frew & Co, Solicitors
For the Respondent: Mr A Govan, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant identifies himself as a citizen of Iraq, born on 1 January 1985.
2. The appellant said that he was employed as a peshmerga by the PUK in Iraqi Kurdistan for 15 years. He claimed that if he returned, he would be at risk as one of those who spoke out against theft by PUK leaders of materials from building projects, and due to an altercation in the street with the son of a PUK leader.
3. The respondent's letter of 4 October 2018, refusing the claim, found the evidence that the appellant was employed as a peshmerga was of poor quality; noted at [58] that by his own account he had not been threatened by the leadership, and found it implausible they would have any interest in him after his resignation; found the court documentation relating to the altercation also of poor quality; and declined to accept that he is at any risk through the individual he mentioned.
4. FtT Judge Handley dismissed the appellant's appeal by a decision promulgated on 9 May 2019.
5. The appellant sought permission to appeal to the UT on grounds attached to his application dated 21 May 2019. The main points were that the Judge relied upon an inconsistency in dating on a letter, but it had since emerged that this was an error of translation or transcription, and 2013 appeared where this should have been 2011; the judge failed to refer to post-interview corrections; and inadequate reasons for not accepting the report of an expert instructed for the appellant, in absence of a report from the respondent.
6. The FtT refused permission. The appellant made an application to the UT dated 27 June 2019, focusing on the absence of "an alternative expert report" and on the translation error, which could be rectified by "objective and uncontentious evidence".
7. The UT granted permission on 10 July 2019, identifying two arguable points: firstly, the FtT appeared to have gone behind the respondent's concession at a case management review hearing (CMR) that a peshmerga card produced by the appellant was genuine; and secondly, there was apparent (inadvertent) error over the date, although not supported by evidence submitted with the grounds.
8. The appellant applied to the UT to produce further evidence, being photographs to advance his claim to have been in the peshmerga, and a corrected translation to substantiate the dating error. (The originals of these items remain in the hands of his representatives.)
9. It was common ground at the hearing in the UT that the respondent did not at any stage make the concession perceived by the Judge who granted permission.
10. It is not clear how the slip arose, but it was not induced by the appellant. The misconception may be due to other documents being copies, whereas the card was a plastic or laminated "original"; but the respondent did not accept that it was genuine, or to be taken at face value of what it purported to show.
11. Mr Young submitted that the judge erred by not accepting the authentication of the documents by the expert, when the respondent failed to produce any report to the contrary.
12. While the Judge had to give expert evidence the respect it deserved, he was not bound to accept its conclusions. It remained for him to evaluate the report, and the absence of a contrary report did not decide any issue.
13. The Judge at [47] gives several reasons: no indication of the author's area of expertise, or of his experience with court documents; no specification of the "original documents of this type" with which he made comparisons; and no specification of the sources he consulted in Kurdistan.
14. Mr Young persuaded me that the point in the middle of [47] about two types of summonses is impenetrable, and not a good criticism of the report. Beyond that, however, no error is apparent in the Judge's reasoning. He did not say that he rejected the report, but that he had concerns about its reliability and found it of limited assistance. In effect, it did not go against the appellant, but it did not go very far in his favour. That view was well within judicial scope.
15. There was an error in one of the dates which first appeared on a letter, as set out in the explanation from the translators dated 20 September 2019. However, Mr Govan was able to demonstrate that this does not bear on the point taken by the FtT at [38], to which the appellant had no counter.
16. Mr Young submitted also on the grounds which go to the appellant's corrections and amendments being overlooked. One clear example emerged. The inconsistency identified over the appellant's movements at [41] is probably ill-founded, because Sheikh Jafer is (as sounds likely) a person not a place (a misconception which goes back to the interview record and the refusal letter). This point is valid, but not enough to undo a decision which rests on various other good reasons, in which no error has been shown.
17. The case has become entrapped in whether the appellant was ever a peshmerga, or involved in a court case, and in minute details. Taking a step back, the evidence that he was a peshmerga may have been neither overwhelmingly strong, nor patently a fabrication; but his case did not turn on that. The crux is that he failed to establish that even if he was a peshmerga, either the PUK or anyone else has any interest in persecuting or ill-treating him if he returns. He has not shown that the reaching of that conclusion involved the making of any error on a point of law, such that it ought to be set aside.
18. The decision of the First-tier Tribunal shall stand.
19. No anonymity direction has been requested or made.

1 October 2019
UT Judge Macleman