The decision


AU (Adjournment – variation of grounds – Bihari) Bangladesh [2004] UKIAT 00121
Heard at Field House
On 16 April 2004
Prepared on 16 April 2004
Date determination notified
              21 May 2004
Mr H J E Latter – Vice President
Mr M E A Innes
Mr D R Bremmer JP
The Secretary of State for the Home Department
For the appellant:                 Miss J Rahman, Solicitor
For the respondent:             Mr A Mullin, Home Office Presenting Officer
1.         The appellant, a Bihari who lived in Bangladesh before travelling to the United Kingdom, appeals against the determination of an Adjudicator, Mrs C M Phillips, who dismissed his appeal on both asylum and human rights grounds against the decision made on 24 October 2002 giving directions for his removal following the refusal of his claim for asylum.
2.         There is no record of the appellant’s date and method of entry into the United Kingdom.  He applied for asylum on 12 December 2000.  He was requested to complete and return a statement of evidence form but failed to do so.  He also failed to attend an interview on 11 July 2001.  In these circumstances his application was dismissed on non-compliance grounds. 
3.         He appealed against this determination.  The procedural history is set out in paragraphs 7-10 of the Adjudicator’s determination.  At the hearing before her the appellant was unrepresented but attended with two friends in support.  He requested an adjournment to obtain legal representation.  His application was refused and the Adjudicator proceeded to hear the appeal.
4.         In his oral evidence the appellant gave his last address as a refugee camp in Chittagong.  He had travelled from Bangladesh by ship to France and then by lorry to the United Kingdom.  He had left his wife, children and father in Bangladesh.  Since the age of 20 he had been involved with promoting the rights of Bihari refugees from Pakistan.  He worked openly and was beaten on a number of occasions by the police and by Bangladeshi people.  An arrest warrant was issued in his name because he was a Bihari refugee who was politically active.  He had to leave or be arrested.  He feared both the followers of the Awami League and the police.  He hid in various different camps before he came to the United Kingdom.  He said that his father had been detained a few times because the authorities could not find him.  People from the refugee camp bailed his father out.  He was involved with the Freedom Party which promoted the rights of Bihari refugees.
5.         He had lived in the refugee camp since independence.  He was hiding with the Freedom Party from the end of 1991 until he left Bangladesh on either 19 or 29 May 2000.  He had been attacked for the first time in February 1990 or 1991.  There had been a second attack in June 1996.  The police were looking for him as they said he had attacked them when in truth they had attacked him.  From 1991 to 1996 he came to the refugee camp at night to visit his wife and then returned to the Freedom Party.  He discovered that they were throwing bombs at the general public.  He was asked to make bombs at the end of 1998 but he did not do that.  He could not leave earlier as he did not have an opportunity of doing so.  He feared return as he had no nationality and was staying as a refugee in a camp.  If found he would be arrested and killed or sent to prison for life.
6.         In his submissions he referred to an arrest warrant.  He had written to the camp asking for documents including a copy of the warrant.  This was not sent although other documents were.
7.         The Adjudicator rejected arguments that the appellant should be excluded from the Convention under the provisions of either Article 1D or E.  She summarised the basis of his fear of future persecution as being based on the attacks on him in 1990/91 and 1996, harassment by the police and general public, his refusal to make bombs for the Freedom Party and the existence of an arrest warrant. The appellant did not know what the warrant was about. He had not been charged but he thought it was because of his political involvement in promoting the rights of the Bihari people.  The police had been looking for him since 1996. 
8.         The Adjudicator was not satisfied that the appellant had suffered past persecution in Bangladesh. She described his oral evidence as vague and somewhat implausible.  His account of the activities of the Freedom Party was not supported by the objective evidence.  She did not accept that he had been in hiding for any extended period from about the end of 1991 until his departure from Bangladesh in May 2000 nor that he was wanted by the police for any extended period of time.  If he had been wanted she did not accept he would have been able to avoid arrest during the period from 1996 to 2000.  She found his evidence about the warrant to be so vague that his fear was based on speculation. Due to the implausibility of his account that the police had been unsuccessfully looking for him since 1996, she did not accept that there was currently a warrant for his arrest.  She referred to paragraph 56 of the UNHCR Handbook which stated that persecution must be distinguished from punishment for a common law offence.  She was not satisfied that the appellant had discharged the onus of proof upon him to show that any potential prosecution for bomb-throwing resulted from the discriminatory application of the law or that it was being used as a vehicle for persecution on political grounds.  She was not satisfied that there was any credible evidence that the appellant was currently of any interest to the state authorities or to non-state agents in Bangladesh.  The appeal was dismissed on both asylum and human rights grounds.
9.         In the grounds of appeal it is argued firstly that the Adjudicator was wrong not to grant an adjournment and secondly reliance is placed on an affidavit from the appellant’s father which produced what was said to be the translation of a warrant from the Office of the Chief Metropolitan Magistrate in Chittagong.
10.       The Vice President refused permission to appeal against the decision to refuse an adjournment.  He commented that the Adjudicator had given the most careful consideration to the submissions which he heard and had come to a conclusion which was not susceptible to challenge.  Permission was granted so that the Tribunal could consider the documentary evidence about the warrant.  He directed that the document should be made available to the Home Office and to the Tribunal so that its validity and implications could properly be assessed.
11.       At the hearing before the Tribunal Miss Rahman applied for permission to vary her grounds of appeal to be allowed to argue the issue of whether the Adjudicator was wrong to refuse an adjournment.  She submitted that if a lawyer had been present the appeal would have been properly presented.  The Adjudicator had failed to take account of relevant documents such as the affidavit and the arrest warrant, although Miss Rahman did concede that those documents had not in fact been in front of the Adjudicator.  It was clear from the Adjudicator’s record of proceedings that the appellant had been distressed at points during the hearing.  The original documents were with Gray & Co (see paragraph 17).  There was now an inquiry by the Scottish Law Society.  She had not been able to obtain the original documents. She had received a telephone call from a solicitor at Blair Cadell who were handling the intervention which she said confirmed that the files at Gray & Co were in a state of muddle and confusion.
12.       Miss Rahman explained that the appellant had instructed Gray & Co after Messrs Drummond Miller had formally withdrawn following the refusal of an application for an adjournment.  The current representatives had made attempts to obtain papers from Mr Michael Gray but they were unclear whether the original documents could be obtained:  see the explanatory statement at A13.
13.       Mr Mullin objected to the application to vary the grounds.  The Adjudicator’s decision to refuse an adjournment was properly open to her.  The grounds had no real prospect of success. 
14.       A decision whether to grant an adjournment is a matter for the Adjudicator’s discretion to be exercised in accordance with the relevant provisions of the Procedure Rules.  It is provided by Rule 40 that an Adjudicator must not adjourn a hearing on the application of a party unless satisfied that the appeal or application cannot otherwise be justly determined.  The Adjudicator has set out the background leading to the adjournment application in paragraphs 7-14 of her determination.  On 22 October 2002 the notice of first hearing on 13 November 2002 and full hearing on 4 December 2002 was sent to the appellant and her then solicitors, Guild & Guild.  At the first hearing it was noted that Guild & Guild were no longer acting and Drummond Miller were asked to confirm whether they were acting.  On 26 November 2002 a further notice of hearing was served upon the appellant and his then representatives Skene Edwards.  On 27 November 2002 Skene Edwards asked for an adjournment of the hearing on 4 December 2002.  This was granted and a notice of full hearing for 16 January 2003 was issued.  On 10 December 2002 Skene Edwards advised that they were no longer acting for the appellant and had advised him to seek alternative solicitors. 
15.       On 20 December 2002 Drummond Miller wrote requesting an adjournment of the hearing on 16 January 2003 as they had only recently taken over as agents and were not in a position to proceed.  That application was refused by the Regional Adjudicator for the reasons set out in paragraph 7 of the determination.  A request for that decision to be re-considered was made but the decision to refuse an adjournment was upheld.  The request was renewed before the Adjudicator on 16 January 2003.  In the light of the past history of the proceedings the Adjudicator took the view that an adjournment would not necessarily lead to the appellant being represented at any future hearing.  Drummond Miller had indicated that they were no longer acting.  The appellant had brought documents to the hearing with him.  The Adjudicator concluded that proceeding in these circumstances would not prevent the just disposal of the appeal. 
16.       It is argued in the grounds that the Adjudicator erred in failing to determine the reason for the appellant being without legal representation and penalised him by not granting the adjournment.  It is argued that the Adjudicator was wrong to take note of the disclosure of a confidential letter from Skene Edwards advising that in their view there were no prospects of success in the appeal.  That letter should not have been placed before the Adjudicator.  The appellant had suffered prejudice. 
17.       When refusing permission, the Vice President clearly took the view that this ground had no real prospect of success.  We agree with that decision.  In our judgment the Adjudicator has taken all relevant matters into account and has reached a decision properly open to her on this issue.  There is no reason to believe that she has given undue weight to the letter from Skene Edwards of 10 December 2002.  It is clear from reading the determination that the Adjudicator gave the appellant every opportunity of putting his case. She kept a careful record of proceedings.  When the appellant was distressed she offered him a break and there was a short adjournment of 20 minutes.  Reliance is now placed on an affidavit and an arrest warrant a copy of which is before the Tribunal.  The original is said to be in files at Gray & Co.  There has been ample opportunity to obtain the original: permission to appeal was granted in May 2003.  There is no indication how long it will take to retrieve the original document from Gray & Co even assuming it can be located. The Tribunal reached no conclusion on the allegations made against Gray & Co, its practitioners or Mr Gray; the allegations as far as could be seen, had not been put to them as they should have been and they have not been able to respond so as to deny them if untrue.  The Tribunal has subsequently received a letter from the appellant’s representatives making it clear that their submissions did not refer to the Glasgow firm of Gray & Co.
18.       Rule 20(2) of the Procedure Rules provides that where the Tribunal has refused permission to appeal on any ground it must not grant permission to vary the grounds of appeal to include that ground unless it is satisfied that, because of special circumstances, it would be unjust not to allow the variation.  The Tribunal is not satisfied that there are any such special circumstances or that it would be unjust not to allow the variation. 
19.       Miss Rahman went on to address the Tribunal on the issue of the arrest warrant.  She submitted that this was a genuine document.  It indicated that in August 1992 an accusation was made against the appellant under the Ammunition Act.  Various attempts had been made to serve the warrant but it had always been recorded that the appellant with the co-accused had absconded.  If he returned to Bangladesh there was a real risk that he would be arrested, detained and put on trial.  Miss Rahman asserted that there was a risk that he would be tortured when in custody.  He would not have enough money to obtain bail.  He would not receive a fair trial because he was a Bihari and would have very few rights in Bangladesh.
20.      Mr Mullin submitted that there was no adequate explanation as to what the document was.  The document relied on did not appear to be a warrant but an information leading to the issue of a warrant. There was no evidence to suggest that the appellant would not get bail even if he was arrested nor that he would not receive a fair trial before the courts in Bangladesh.
21.       The Tribunal asked Miss Rahman whether there was any information about how this document came into the possession of the appellant’s father.  She took instructions and the Tribunal was told that the document had been served on his father at his  home address.  He had then obtained a translation from a solicitor.
22.       The first issue for the Tribunal to consider is whether there is a reasonable degree of likelihood that this is a genuine document.  Mr Mullin put in evidence a letter from the British High Commission in Dhaka dated 1 December 2003 which confirms that forged and fraudulently obtained documents are readily available in Bangladesh and are frequently submitted in support of entry clearance applications.  It records that the most successful way of verifying documents is by visiting the establishment issuing them but this has met with mixed results.  Where there are local manual records as at police stations assistance is generally given and the authenticity of documents can be confirmed.  Unfortunately, given the poor infrastructure in Bangladesh coupled with the climatic conditions, many locations are inaccessible for much of the year and even short journeys to make enquires in and around Dhaka can be very time-consuming and labour-intensive.  The High Commission does not have the resources to undertake such enquiries.
23.       In any event the High Commission have not been given the opportunity of considering the authenticity of this document.  The bundle of documents was only served on the respondent on the day before the hearing and then only photocopies.  The only explanation as to how this document came into the possession of the appellant’s father is that it was served upon him.  It is difficult to think why the authorities should now take this course of action bearing in mind that the document is dated 25 June 1992.  There are six monthly endorsements on the document that the warrant has not been returned and that the accused have absconded.  The final endorsement is dated 5 July 2001 confirming that the police have not been able to arrest the accused and the Police Commissioner is asked to implement the warrant for arrest and to send a message to border security to prevent him leaving.  There is nothing to explain why that action was not taken earlier than July 2001. 
24.       On the basis of the evidence before the Tribunal, we are not satisfied that there is any reasonable degree of likelihood that this is a genuine document evidencing that the appellant is still wanted by the authorities.
25.       However, even if the document is genuine and there is an outstanding arrest warrant, the appellant fails to show that any subsequent detention and trial would lead to persecution or would be motivated for a Convention reason.
26.       The Tribunal has been referred to the CIPU Country Report for Bangladesh October 2003.  This records at paragraph 5.34 that there is a system of bail for criminal offences and bail is granted commonly for both violent and non-violent crimes.  The lower courts remain part of the executive and are subject to its influence but the higher levels of the judiciary display a significant degree of independence and often rule against the government:  paragraph 5.13.  Trials are in public and the law provides the accused with the right to be represented by counsel, to review prosecution material, to call witnesses and to appeal against verdicts:  paragraph 5.16.  The report also records that there is widespread police corruption and lack of discipline and that police abuses go unpunished.  There are also reports of politically motivated detentions.  The position of Biharis is considered in paragraphs 6.55-64.  There is nothing to indicate that a Bihari is less likely to receive a fair hearing than any other citizen of Bangladesh.  Looking at the evidence as a whole, the Tribunal is not satisfied that there is any basis for interfering with the Adjudicator’s findings that any prosecution would not be motivated for a Convention reason. 
27.       In summary, the Tribunal is not satisfied that the documents now produced are genuine or show that the authorities of Bangladesh have any adverse interest in the appellant.  Even if they are genuine and there is a risk of prosecution, there is no real risk of persecution for a Convention reason or treatment contrary to Article 3.  There is no proper basis for a finding that the appellant would not receive a fair trial.
28.       In these circumstances this appeal is dismissed.
H J E Latter
Vice President