Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12310/2016

THE IMMIGRATION ACTS

Heard at Liverpool Justice Centre
Decision & Reasons Promulgated
On 21 December 2017
On 19 January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

ab
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Schwenk, Counsel instructed by GMIAU, Manchester
For the Respondent: Mr C. Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This appeal relates to a protection claim. An anonymity direction is therefore made.

2. The Appellant appeals with permission against the decision of First-tier Tribunal Judge Alty sitting at Manchester whereby his protection claim and human rights claim had been dismissed.

3. The Appellant's claim related to possession of a book called "23 Years" by Ali Dashti. It was a book banned in Iran and related to demystifying the prophet Mohammed and Islam. The author rejected the notion that the prophet Mohammed was a religious or holy person. The Appellant fled Iran when the authorities undertook a search of his home and found the book. The Appellant said he had been in touch with his family in Iran since he fled and they told him that the authorities had returned to his home and had threatened his father with arrest.

4. The Judge did not accept that the Appellant's account was credible. The Judge noted the background evidence included a report from the Immigration and Refugee Board of Canada which stated that searches for banned books are no longer carried out in Iran due to the requirement to obtain a search warrant first. No warrant was provided in this case and indeed despite subsequent claimed visits by the authorities, there was no documentary evidence of the authorities' efforts to enter the property provided by the Appellant. The Judge said although the difficulties in obtaining documentary evidence in asylum claims are manifest, adverse inferences can be drawn where documentary evidence can reasonably have been expected but is not provided.

5. At paragraph 35 the Judge said after taking all matters into account holistically she was not satisfied that the Appellant had substantiated his claim to be of interest to the Iranian authorities due his connections to a political activist or ownership of the book, 23 Years.

6. In his submissions Mr Schwenk said that the Judge's credibility findings were unsafe. In effect, the Judge had made a mistake because the search warrant was nothing to do with a banned book, but was in respect of the missing judo instructor. It was during the search that they discovered the banned book. This was explained at paragraph 36 of the witness statement. The issue of seeing search warrants had not been raised in the Reasons for Refusal Letter or during the hearing. It was submitted that no adverse inference could be drawn. The search warrant was a search for someone else. Secondly, there was no evidence that the Iranian authorities are in the habit of providing copies of search warrants. It was an unsafe assumption to think Iran operated the same way as the authorities did in the UK. The remaining grounds spoke for themselves.

7. Mr Bates said that he had looked at the minutes of the hearing and the Presenting Officer notes referred to whether there was an arrest warrant, but the Judge had referred to a search warrant. In any event though, there was no supporting evidence or documentary evidence of the subsequent visits by the authorities to the Appellant's home in Iran. The Judge expected more supporting evidence. It was a rounded determination. There wasn't any documentary evidence so the Judge was entitled to have regard to that. As to the reference to the standard of proof and the reference to "convince" it is something commonly said and is still engages the lower standard of proof. Paragraph 31 needed to be read alongside the decision as a whole. As the Rule 24 Response had indicated, all of the factors had been considered in the round by the Judge. If I was against the submissions, then the matter ought to be remitted to the First Tier Tribunal for a hearing de novo.

8. In my judgment, there is a material error of law in the Judge's decision. I have some sympathy with the Judge because this was a relatively easy-to-make up claim about a banned book but there was nothing to support the Appellant's claims. However, the Appellant's claim was as submitted by Mr Schwenk, namely that the authorities were searching for the judo instructor and happened to find the banned book in the Appellant's home. There would therefore not have been a search warrant as referred to in the background material which the Judge had referred to. Similarly, it was not safe to assume that the authorities in Iran would have provided search warrant documents for the subsequent visits that they made to the Appellant's home in Iran. Coupled with the fact that it does not appear that the issue of a search warrant was raised in the Respondent's Reason for Refusal Letter nor clearly raised during the hearing means that it was unsafe for the Judge to conclude the failure to provide corroborative evidence was fatal to the claim.

9. I therefore conclude that there is a material error of law in the Judge's decision. There shall be a re-hearing at the First-tier Tribunal on all issues. None of the current findings shall stand.
Notice of Decision
The First-tier Tribunal Judge's decision contains a material error of law and is set aside.
There shall be a re-hearing at the First-tier Tribunal on all issues.
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 his 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. A Mahmood 23 12 2017

Deputy Upper Tribunal Judge Mahmood