Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: AA/06984/2012 THE IMMIGRATION ACTS Heard at Manchester Date Sent On 11 June 2013 On 5 July 2013 Prepared 13 June 2013 Before UPPER TRIBUNAL JUDGE RINTOUL Between MH Appellant and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: Ms A Faryl, Counsel, instructed by Jackson & Canter, Solicitors For the Respondent: Ms S Marsh, Home Office Presenting Officer DETERMINATION AND REASONS 1. The appellant appeals with permission against the determination of the First-tier Tribunal Judge Alis, promulgated on 31 August 2012 dismissing her appeal against the decision of the respondent made on 13 July 2012 to refuse her claim for asylum and to remove her from the United Kingdom. 2. The appellant is a citizen of Iran, born in September 1985. In 2009 the appellant went to work for the Islamic Republic of Iran Broadcasting Radio ( IRIB ), initially as a freelance sound recorder. She applied in early 2011 for a full-time post but was refused, the reasons given being her dress; her CROWN COPYRIGHT 2013
failure to keep the Islamic ethics properly; and, not voting in elections. Her appeal against the decision was rejected in 28 August 2011. She was, however, with her father s assistance able to secure a 12 month trial placement, subject to conditions unknown to her but which she believed that her appearance was being assessed. 3. After her trial started the appellant began to investigate other religions, looking first at Christianity. She attempted to visit a church but was, as a Muslim, refused entry. She discussed what had occurred with a friend, by telephone. 4. At the end of May 2012 the appellant became aware that the authorities had learned of her research and her telephone conversation. A friend of her father had contacted him and told him she had seen a letter about her which had been sent to the Herasat within IRIB. The next day her head of department called the appellant at her father s home. He told her that he had received a letter from Herasat requiring her to present herself to them within a week. He advised her not to do so as she would be sent to Evin Prison. The appellant discussed this with her parents, and arrangements were made for her travel out of Iran, travelling overland to Turkey and then by air to the United Kingdom. Since arriving in the United Kingdom, she had learned that the authorities have been to visit her home address, and to her father s address. The appellant fears that if returned to Iran, she faces persecution. 5. The respondent refused the application for the reasons set out in the refusal letter dated 6 July 2012. In summary, the respondent was not satisfied that the appellant worked for IRIB given that although she had some knowledge of the organisation [21] the wage slips she had submitted were not originals [22] and did not indicate that they were issued by IRIB. She noted that the background information relating to recruitment processes and security checks for employment in the Iranian government and its agencies were based on selection criteria called Gozinesh [25] under which people were denied state employment because of religious affiliation and political opinions; that the hiring process generally included three stages including presentations of three references from public servants of an equal or higher rank than the position sought; an interview to determine the candidate s professional competencies and a test to gauge his or her religious and ideological sympathies; and finally, the security branch of the department that is hiring would conduct a background check of a candidate [25]. 6. The respondent noted [26] that the three stage process applied to those employed by the state radio station and that the appellant s account of being hired by the government controlled radio station but without having to go through any checks was inconsistent with the background information and that she had not adequately explained why no checks were conducted before she began working for IRIB [26], considering that the explanations were not credible. 2
7. The respondent noted also that the appellant had failed to provide an explanation as to how she was able to obtain letters regarding her employment which were not addressed to her [27] and that the information in the letters was inconsistent with her account of why she had failed the security checks and did not accept the appellant would have ceased to be employed because of security checks after three years of employment [27]. 8. The respondent did not accept that the appellant s father s influence would have been such as to influence people in IRIB to employ her given the stringency of the checks and the reasons for which people were rejected. 9. The respondent did not accept that the appellant would, despite having no religion, have difficulties in Iran [32] and that her account of being interested in other religions in Iran was not credible [33] and that the appellant had failed to provide a credible account of research she claimed to have conducted in Iran [34]. 10. The respondent did not accept the appellant s account of her experience of going through security checks to gain employment and being refused that the appellant would then begin researching religion when she was subject to checks and conditions and did not find this credible given her awareness that the security department do checks on religious and political background, not least as the whole radio system was under the watchful eye of the security services. 11. The respondent drew further inferences adverse to the appellant from the fact that she could not give specific dates for when her problems occurred [37] and had failed to provide a credible account of what had happened after the Herasat became aware of her activities and she found out that she was wanted [38]. 12. The appeal against that decision then came before Judge Alis, sitting at Manchester on 23 August 2012. The judge noted [38] that credibility is a key factor because, if the appellant s claim was credible, the respondent conceded that the appellant would be at risk. The judge found that the appellant was employed at some time by IRIB in one form or another [42] the issue before him being whether what she said had happened in 2012 did in fact happen. 13. The judge considered that [45] there was no evidence that the appellant had been kept on by IRIB after August 2011; the letters did not suggest that she lost her position because of her dress but because she was not qualified and he did not find it credible that, having been rejected twice, she would be given a further opportunity especially as she had not been following accepted practices. He found it surprising that there was no letter confirming the terms of employment noting that no wage slips for the period had been provided, the only wage slips being from 2009 [45]. The judge noted [46] that although corroboration is not needed in an asylum claim, on limited evidence points to the fact that she was 3
dismissed from her employment and she claims that she was kept on, that the absence of such a document would undermine the claim. 14. The judge did not find the appellant s claim to be interested in other religions to be credible [47] and found it incredible that, given the risks of Muslims attempting to convert to Christianity, and the fact that the appellant was aware that she was being monitored for work purposes, that she would have acted openly about her interests in churches. He noted also that he was only able to say the appellant had visited her mother s home once and although required to report to the authorities no summons had apparently been issued, that there was a discrepancy between her statement and oral evidence as to how often she spent with her parents, and did not accept that the person preparing her statement was probably to blame for this because her parents were separated but that point was referred to earlier in her statement. 15. The judge found that the appellant s evidence that her father s home had been visited to be incredible [47]. 16. The appellant sought permission to appeal against that decision on the grounds: (i) (ii) that the judge s findings were in part contradictory [7] as he had found that she had been employed yet found that the appellant would have been screened before being employed but she had said that she was not, indicating that her claim to be employed was undermined; that the judge found in the appellant s favour due to the documentary evidence of all the photographs, payslips and letters from the employer but that he erred in rejecting her claim to have continued employment after August 2011 due to a lack of documentary evidence despite setting out the correct approach [9]; (iii) that additional wage slips can be produced up to November 2011 which were not before the judge [11] and it had been requested that these be admitted; (iv) (v) that the judge s finding that the appellant s interest in other religions was not credible was informed by flawed credibility findings earlier in the determination [12]; that the judge had failed in concluding that the appellant s credibility was undermined because she was aware that she was being monitored for work purposes in taking into account her evidence that she was not aware of the extent of the monitoring [13]; (vi) that the judge erred in taking into account at paragraph 47, factors which were not relevant, it being unclear why the judge would think a summons would be issued and second that the discrepancy as to how often she spoke with her parents was minor, the appellant s evidence that this may be attributed to those preparing her statement being simply speculation; and, failure to give clear reasons 4
for rejecting the appellant s evidence that her father s home had been searched. Does the determination of the First-tier Tribunal involve the making of an error of law? 17. Miss Faryl submitted first that I should take into account the additional material referred to in the grounds of appeal and which had not been produced and exhibited to the witness statement of Gordon Irving, solicitor employed by Jackson and Canter LLP, the appellant s solicitors. 18. Miss Faryl submitted that these documents should be taken into account in light of the decision in Ladd v Marshall and E v SSHD [2004] EWCA Civ 49. 19. Whilst the court has a discretion to admit new evidence, it is normally exercised subject to Ladd v Marshall principles (E v SSHD, [68]) the Court of Appeal in E v SSHD [91] holding that the Ladd v Marshall principles which may be departed from in exceptional circumstances where the interests of justice require. 20. In this case, I am not satisfied that the test is met. The relevant documents were in the possession of the appellant well before the hearing. The explanation given for the documents not being produced is that there was insufficient public funding available to have them translated. This does not explain to me adequately why the earliest payslip and the latest payslips could not be translated. Further, Mr Irving says in his statement [3] on discussing the appeal determination with the appellant, she advised us that the payslips she provided to us showed that these had been issued up to November 2011. The appellant was therefore aware of this evidence, and no sufficient explanation has been given why she did not bring it to the attention of the court or her solicitors before the hearing. 21. I am not satisfied that this is sufficient. Whilst it may have been very expensive to translate all the payslips that does not explain why the oldest one and the newest one could not have been translated. Further, as the judge noted, the issue was what had happened in 2012 and as Mr Irving acknowledges [6] the wage slips would have shown the position up until December 2011. Accordingly, I am not satisfied that sufficient reasons have been given such that these documents should now, exceptionally, be admitted at this stage of the appeal. 22. I consider that the judge was entitled, on the evidence before him, to conclude that the appellant had not been employed after August 2011. It was open to him to consider that, given that the evidence the appellant had adduced showed that her employment had ceased that there needed to be more to show that, contrary to that evidence, she had indeed continued to be employed. It was open to the judge to find, weighing the evidence before him, that the appellant had indeed been employed but he 5
concluded that there was insufficient evidence to show that this had continued beyond August 2011, given that the letters from that date produced by the appellant indicated that her employment ceased around that time. To submit that the judge erred in these findings is little more than a disagreement. 23. Further, and in any event, as the judge records [42] the issue is whether what happened in 2012, that is the appellant s interest in other religions, came to the adverse attention of the authorities. Contrary to what is asserted in the grounds of appeal [12] it is not at all obvious that the judge s findings regarding the appellant s interest in other religions was informed by his other credibility findings. The judge sets out [47] in detail why he did not accept this aspect of her claim. 24. I note that at paragraph 22 of her witness statement the appellant said that she was not aware of the phone calls and texts being tapped and monitored as part of her conditions, and at paragraph 48 that she did not know exactly what the Herasat were checking, as was noted in the refusal letter in her interview at questions 136 and 138 the appellant indicated an awareness that she was aware of security checks at her place of employment and that background checks would be conducted including religious and political background. The judge heard the appellant give evidence and observed her and it was open to him to conclude, as he did, that he did not accept the appellant s explanation. The judge s conclusions in this respect are supported by the factors impugned in the grounds of appeal [14 to 17] as Miss Marsh submitted. 25. In respect of the first of these factors, it is evident from the decision that insofar as the judge considered that no summons had apparently been issued, this is in relation to what had happened after the enquiries had been made to the home not the situation where the appellant had sometime earlier been requested to present herself to Herasat [15]. 26. It was open to the judge to draw inferences adverse to the appellant from a discrepancy as to how often she had spoken to her parents and in stating she blamed the discrepancy on the fact that the person preparing her statement for her was probably unaware her parents were separated but this particular point was referred to earlier in her statement he sets out sufficient reasons for discounting the appellant s evidence. 27. The judge was also entitled to take into account that it is the appellant s evidence [22] that she had decided not to contact her father in case her actions led to him having problems that she is aware of the authorities visiting her mother s house once and has recently been told they have been to her father s house. She said that she was told this by her mother but she did not know when this had occurred. 28. The discrepancy in how often the appellant contacted her parents is connected to her explanation for not knowing until shortly before the hearing that the authorities had contacted her father as, had she been in regular contact with her parents, it is difficult for her to explain adequately 6
why she had not previously mentioned the interest shown in her father by the authorities. In this context, the judge has given adequate reasons for disbelieving the appellant. 29. In conclusion, the judge had given adequate reasons for disbelieving the appellant s account first of being employed by IRIB until 2012, for the Herasat have been taking an adverse interest in her, rejecting claims that the authorities had been to visit her parents since she had left Iran. On that basis, he was entitled to reject the appellant s claim that she was at risk on return to Iran, and gave sufficient reasons for so concluding. 30. For these reasons, I consider that the determination of the First-tier Tribunal did not involve the making of an error of law and I uphold it. Signed Date Upper Tribunal Judge Rintoul 7