(Immigration and Asylum Chamber) Appeal Number: PA/04495/2018
THE IMMIGRATION ACTS
Heard at Manchester
Decision & Reasons Promulgated
On 25 th January 2018
On 4 th April 2018
DEPUTY UPPER TRIBUNAL JUDGE JUSS
mr Namruddi Abubakarov
(ANONYMITY direction NOT MADE)
For the Appellant: Mr Greer (Counsel)
For the Respondent: Mr C Bates (Senior HOPO)
DECISION AND REASONS
1. This is an appeal against a determination of First-tier Tribunal Judge A J Parker, promulgated on 29 th October 2018, following a hearing in Manchester on 3 rd October 2018. In the determination, the judge dismissed the appeal of the Appellant, where upon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
2. The Appellant is a male, a citizen of Russia, and was born on 16 th December 1996. He appealed against the decision of the Respondent dated 15 th February 2018, refusing his application 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 in August 2016 he was working on a construction site, building an outdoor kitchen, for the son of a Ahmad Dokayev. When the work finished he and his colleagues approached the son and asked for payment. That payment was not forthcoming. In September 2016 the Appellant went and spoke to the father, Ahmad Dokayev, himself. He told the Appellant that he should come back in a couple of days for payment. In the meantime, the son got to hear about this, and was not happy for the Appellant going and speaking to his father and complaining about him. In early October 2016, on the way home from work, he noticed a black vehicle outside his house. He entered his home, and was kidnapped, and detained for two weeks. On 21 st November 2016, his neighbour told him that someone was going to arrest him. His neighbour worked with the security forces, the NVD. Ahmad Dokayev, himself worked for the FSV, and the special services and the military. The Appellant claims that he had problems with the military working for Ahmad Dokayev. He took to social media to slander Ahmad Dokayev and Ramzan Kadyrov, who was the oligarch. What the Appellant, however, was unable to do, was to provide evidence of his claim that he had taken these steps on social media. He claimed that he had deleted his SIM cards. These provide the identity necessary to obtain the duplicate copies of his postings. He deleted his account. He asked a friend to delete the accounts to avoid further problems in Chechnya, from where he came. He now stated that there was a summons out for his arrest.
The Judge's Findings
4. The judge did not find the Appellant to be a credible witness. At the hearing, the Appellant was asked how "Ramzan Kadyrov" would be able to get Ahmad Dokayev to pay the money back. The judge observed that, "Ramzan Kadyrov would be the military commander of Ahmed Dokayev. I am not sure why slandering Ramzan Kadyrov would help the Appellant in his dispute with Ahmed Dokayev" (paragraph 28).
5. However, the judge was aware that there was material from Human Rights Watch, together with publications in The Guardian Newspaper, that suggested that the authorities carry out a witch hunt against "suspected critics", and that "The Guardian Newspaper on page 23 suggested someone similar to the Appellant was targeted for making low grade comments and criticism of the oligarch" (paragraph 32).
6. Against this background, however, the judge, looked at the fact that there was a contractual relationship between the Appellant and the son of Ahmad Dokayev, for whom he was undertaking building works. In the light of this, the judge observed that,
"There is a contract dispute and you have to consider why the state would get involved. We are asked to believe the Appellant would slander Ramzan Kadyrov to obtain payment representing four weeks' work. He admits himself that this would carry risk and you would have to ask what happened to the other workers who remained behind" (paragraph 35).
7. The appeal was dismissed.
Grounds of Application
8. The grounds of application state that the judge had misdirected himself with respect to the plausibility findings. The judge also had made an improper requirement for corroboration. Moreover, there had been a mistake of fact.
9. On 21 st November 2018, permission to appeal was granted on the basis that it was arguable that the judge failed to make any clear findings with respect to the Appellant's account, as to why he would complain to Kadyrov. There was also the question of the summons produced by the Appellant in support of his claim. The Appellant may well have been inconsistent over the date on which he was released from detention, but that may not have been material.
10. At the hearing before me on 25 th January 2019, the Appellant was represented by Mr Greer of Counsel. He made the following submissions. First, that with respect to the Judge's misdirection, a number of questions arose. Judge Parker had remarked (at paragraph 58) that, "I am not sure why slandering Ramzan Kadyrov would help the Appellant in his dispute with Ahmed Dokayev". However, the Appellant had explained his motivation at paragraphs 11 and 13 of his witness statement. He had said he was angry. Ahmed Dokayev was a close associate of Kadyrov. The Appellant had complained to Kadyrov. Kadyrov had failed to take remedial action. In the circumstances however, the "personal" had become the "political" submitted Mr Greer, and against the background of the acknowledged objective evidence, which the judge referred to (at paragraph 32) that even "low grade comments and criticism of the oligarch" can land one in trouble, the judge was wrong to have made adverse plausibility findings against the Appellant. In the same way, the judge was wrong (at paragraph 35) to say that it was unbelievable that the state would be interested in pursuing an individual involved in criticising Kadyrov online because "there is a contract dispute and you have to consider why would the state get involved". However, this is exactly the sort of thing in which Kadyrov engages. A report of a social worker being publicly humiliated by Kadyrov for posting WhatsApp messages is available (see the Appellant's bundle at page 23). The Guardian report was clear that "even the mildest criticism" on social media of the oligarch lands one in trouble. Therefore, on any rational view, the evidence before Judge Parker suggested that the Appellant's account of being arrested, detained, and then released, is plausible. Furthermore, the judge at (paragraph 36) held that it was not plausible for the Chechen authorities to release someone for criticising them online, but is unclear upon what basis the judge comes to this conclusion.
11. Second, in relation to the requirement of corroboration, this issue arose because the Appellant had not been able to provide evidence of online posts, because these had been removed. Reference was drawn to the well-known case of TK (Burundi), by the judge, but the judge was wrong in concluding that "where it is readily available" then "its absence can play" a role "in determining overall credibility" (paragraph 30). What the Appellant had claimed all along was that this information had been deleted online. The online website was a Russian one. Under Russian data protection laws, all materials should be removed after a year. The Appellant would not have been able to acquire any information, even if he had written to make such a request of the Russian authorities themselves. Paradoxically, submitted Mr Greer, if the Appellant had given a truthful account, as he had maintained he had done, then deleting the offending posts (as you stated at paragraphs 14 and 32 of his witness statement), would mean that he could not produce any screenshots of the post, as demanded by the judge. That requirement, accordingly, too was irrational.
12. Third, the judge had embarked upon a mistake of fact in concluding (at paragraph 36) that the Appellant had been inconsistent of the date on which he was released from detention. The judge had observed that "he was released on 21 st November or 16 th October depending when he was asked". This overlooks the fact that the Appellant's solicitors have written to the Home Office following his substantive interview to complain about the interpretation of his answers to questions 89 and 93 of the interview and to seek the correct transcript of his interview (see the Appellant's bundle at page 7). Judge Parker did not recognise this fact.
13. For his part, Mr Bates submitted that the judge had come to the conclusion that the Appellant was not telling the truth given his answers at questions 71 to 75 and 110 when "he confirms he has made no political comments on social media and he would not be considered a political activist" (paragraph 37). Accordingly, there is no risk to the Appellant. Second, despite this, we are asked to believe that the Appellant had complained on the oligarch's web wages. He was owed four weeks' wages. It was not plausible that he would "slander Ramzan" (see paragraph 35) as found by the judge. It was not plausible that in the circumstances his neighbour would take a risk to forewarn the Appellant (see paragraph 36). It was not plausible that the Appellant was unable to approach the internet provider, (paragraph 30) and at least get some information, given that his claim was that he had posted slanderous comments on the internet.
14. In his reply, Mr Greer submitted that the judge had subverted the import of TK (Burundi) because that was a case where there had been a failure to call forward witnesses who were plainly available. This, on the other hand, was a case involving quite complex internet information, which belonged to a foreign country, namely, to Russia, and where the data protection laws prevented the retention of such information. Second, the Appellant plainly explains (at paragraph 32 of his witness statement) why he had slandered the oligarch, Ramzan Kadyrov. He had explained that he had been carried away, on account of his frustration, because he was not being paid for the work that he had done.
No Error of Law
15. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. I come to this conclusion notwithstanding Mr Greer's eloquent efforts to persuade me otherwise in what is a comprehensive and clear determination, the judge was plainly entitled to come to come to the conclusions that he did. The Appellant's case was that he "took to social media to slander Ahmed Dokayev and Ramzan Kadyrov". Leaving aside the question of what was available from the Russian authorities, "the appellant said that he had deleted his SIM cards which provide the identity necessary to obtain duplicate copies of his postings" (paragraph 20). Plainly, therefore, the Appellant was not able to provide any evidence, because he had removed all traces of such evidence. It did not stop there. The judge observed however "he deleted the account and asked a friend to delete the accounts to avoid further problems in Chechnya".
16. Second, and in any event, the judge was entitled to come to the conclusion that the appellant "was only detained for two weeks and beaten" and that "if the authorities would imprison or kill anyone who speaks out against them" then in this case "they have had ample opportunity to kill the Appellant" (paragraph 21) but had not done so. Instead, the Appellant had been released.
17. Third, in his asylum interview, the Appellant had made it quite clear (at questions 71 to 75 and then again at question 110) that "he has made no political comments on social media" and also that "he would not be considered a political activist". What one is left with, therefore, is, even at its highest, the fact that if the Appellant had chosen to "slander Ramzan Kadyrov to obtain payment representing four weeks' work" (paragraph 35) then he had paid the penalty for that. He had been apprehended, beaten up, and then released. Even if one accepts that what the Appellant had embarked upon was "making low grade comments and criticism of the oligarch" (paragraph 32), it is plain that the authorities would not have any further interests in him because he had been released. This was the finding of the judge. The judge was entitled to come to such a conclusion. There is no error of law.
Notice of Decision
The decision of the First-tier Tribunal did not involve an error of law. The decision shall stand.
No anonymity direction is made.
This appeal is dismissed.
Signed Dated :3 rd April 2019
Deputy Upper Tribunal Judge Juss