The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00733/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 11th January 2017
On 25th January 2017




Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

MISS MOUNIKA KISTAMGARI
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Slatter, instructed by Polpitiya and Co Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer


DECISION AND REASONS

1. The Appellant, a national of India, appealed to the First-tier Tribunal against the decision of the Secretary of State dated 10th May 2016 to refuse her application for asylum and humanitarian protection. First-tier Tribunal Judge Kimnell dismissed the Appellant's appeal and the Appellant now appeals with permission to this Tribunal.
2. The background to this appeal is that the Appellant entered the UK with entry clearance as a student issued in January 2010. She returned to India in February 2011 and came back to the UK on 14th April 2011. She made a further application for leave to remain as a student on 20th May 2011 but that was rejected as was an application made on 24th May 2011 which was refused on 12th April 2012 on the basis that false bank statements had been submitted. On 17th May 2012 the Appellant made an application for asylum. The basis of her application was that she could not return to India because she had converted to Christianity. She also claims that her mother is a strong believer in Hinduism and is a Hindu Goddess. The Appellant claims that when she returned to India in February 2011 she resisted her mother's wishes to follow in her footsteps and be a Goddess. She says that her parents slapped her, pulled her hair and locked her in a room for three days. Following that the Appellant co-operated with her parents until she was able to escape from the family home and returned to the UK.
3. In the reasons for refusal letter the Respondent accepted the Appellant's identity and nationality and accepted that the Appellant had converted to Christianity from Hinduism. However the Respondent did not accept that the Appellant's mother is a prominent religious figure in the local community. The Respondent did not accept that the Appellant is likely to be at risk of persecution upon return to India on account of her Christian faith. The Respondent considered that, in any event, there was a sufficiency of protection in India and that it would be open to the Appellant to internally relocate within India.
4. At the hearing before the First-tier Tribunal the judge was shown a DVD showing a Hindu ritual involving the Appellant and her mother. The judge heard oral evidence from the Appellant and her aunt. The judge concluded on the basis of this evidence that the Appellant's mother;
"?probably is revered in her local community and that she has a following of perhaps as many as 500 people. In addition the appellant has submitted a report from Shantanu Mohan Puri who concluded that the appellant's mother might be considered as a goddess/god-woman in her community." [39]
5. The judge accepted that it is possible that the Appellant was chastised when she returned in 2011 by being slapped and confined in her own room for three days [41]. However the judge went on to identify the crux of the case as being whether the Appellant's fear is well-founded [42]. The judge did not accept that the Appellant was at risk of becoming the victim of an honour killing because, although it might be thought that to disobey her mother's wishes might be regarded as an insult there is no evidence of any of the Appellant's mother's followers ever having harmed anybody and the only evidence of violence by the mother is "a single slap inflicted on her daughter in 2011 when she returned to India and a single blow when she hit out against her sister". The judge concluded "such treatment does not amount to persecution and does not indicate that the Appellant's mother would go to the lengths of actually taking her life" [42].
6. The judge considered the expert's report at paragraph 43 and noted that the expert concluded that the Appellant's mother's followers "may" harm the Appellant in vengeance and that the Appellant's mother may not harm her directly but in the guise of Hindu extremist groups "may" persecute the Appellant. However the judge concluded that this is not sufficient to show that a real risk exists to the Appellant in this case and that there is no reasonable degree of likelihood that the Appellant would be harmed for disobeying her mother or for changing her religious beliefs [43]. The judge accepted that the Appellant may face opprobrium from her family because of their disapproval of her defiance of her mother's wishes and because of her conversion to Christianity but did not accept that there is any real risk of serious harm sufficient to amount to persecution or that there is a real risk of serious harm so as to be in need of humanitarian protection [46]. The judge went on to conclude that it would be possible for the Appellant to relocate if she wishes to another part of India.
Error of Law
7. There are five Grounds of Appeal as set out in the application and by Mr Slatter at the hearing. The first ground contends that the judge failed to take into account all of the evidence in relation to the ill-treatment suffered by the Appellant when she returned to India in 2011. Mr Slatter pointed out that in her witness statement (paragraphs 23 to 24 and 30) the Appellant said that her mother slapped her face multiple times, that her father beat her with his sandal and his elbow, dragged her by the hair and locked her in a room, that she had bruises all over her body and hurt terribly and was sore for days. He submitted that this amounted to evidence of persecution and that this is material because of paragraph 339K which indicates that evidence of persecution in the past is relevant to the assessment of future risk.
8. On the other hand Mr Kotas submitted that it is clear that the judge accepted that the Appellant was subjected to domestic mistreatment but the judge concluded that this falls short of persecutory treatment ([41] with reference to [7]). He submitted that this was viewed through the prism of paragraph 38 of the Appellant's witness statement where she said that after she was released from the room she obeyed her parents in order to gain their trust. He submitted that it was open to the judge to find that the Appellant may face opprobrium from her family but that this did not amount to persecution or serious harm sufficient to engage the Convention.
9. I accept Mr Kotas' submissions on this issue. I agree that it is clear from paragraphs 7, 20, and 41 that the judge was aware of the Appellant's evidence as to what her parents had done. The conclusion at paragraph 46 was therefore open to the judge on the basis of this evidence.
10. The second Ground of Appeal contends that the Appellant expressed fear of return to India on two bases and Mr Slatter submitted that the judge had muddled these two aspects of the case in his decision. He submitted that the primary fear expressed by the Appellant is that of persecution at the hands of her family and/or her mother's followers in her home area as a result of her refusal to follow her mother's calling and of disobeying her mother's wishes. He submitted that the judge did not grapple with the Appellant's failure to obey her mother's orders and failed to engage with the expert report on this issue.
11. However Mr Kotas submitted that the judge did engage with the expert report but that the expert report was equivocal in terms of the risk to the Appellant on this ground. Mr Kotas pointed out that the expert said that the Appellant may face resentment from her mother and her mother's followers and submitted that resentment does not amount to persecution and although the expert said that she might face persecution at the hands of her family this is not particularised.
12. I do not accept Mr Slatter's submission that the judge confused the two aspects of the Appellant's claim. It is clear, for example at the end of paragraph 43 and at paragraph 46, that the judge was aware that the Appellant was claiming to be at risk because of disobeying her mother and because of her conversion. I consider that the judge was sufficiently aware of this and that he separated these two issues.
13. The judge clearly considered the risk to the Appellant as a result of not following in her mother's footsteps. This issue is considered at paragraph 42. the conclusions are consistent with the expert's report at paragraph 14 where she said:
"Therefore, in light of this, if the Appellant's mother has ordered that the Appellant should follow her footsteps to be a Goddess, then in the eyes of her mother's followers, the Appellant is bound to obey this decision of her mother. In case the Appellant refuses or fails to obey her mother's orders, then she would face resentment from not only her mother but also from the devotees of her mother. The Appellant has claimed that her mother and father have already been physically violent, on her refusal to follow her mother's legacy. If this is true then the Appellant's dissent would be regarded as disrespect towards the family honour since as per Indian traditions, children have a morality to follow the directions of their parents. Also the fact that the Appellant's family's financial position and status will be affected by her refusal to become a Goddess, but add to their fury and discontentment towards the Appellant. The Appellant might face persecution at the hands of her family, since she would bring shame to the family by not being able to become a Goddess."
14. I accept Mr Kotas' submission that the judge's conclusion, on the basis of this and all of the evidence, that the treatment experienced by the Appellant and the possibility that she would face 'resentment' does not amount to persecution was open to the judge on the basis of the evidence before him.
15. The third ground relied upon by Mr Slatter relates to the Appellant's conversion to Christianity. He submitted that this places the Appellant at further risk on return. He referred to page 18 of the expert's report which dealt with the third question put to her which asks about the consequences if the Appellant's mother and the community or followers get to know that she has already converted to Christianity. At page 18 the expert said, "the Appellant's conversion of religion might further put her at risk of persecution if the Appellant's mother and the community/followers get to know about it". The expert went on to say that a person who renounces his religion and severs his identity from the group is thus "shunned from the community" and that the followers may harm the Appellant in vengeance. The expert concludes that section by saying that the Appellant's mother may not harm the Appellant directly but in the guise of these Hindu extremist groups may persecute the Appellant. Mr Slatter submitted that it is unclear from paragraph 43 why the judge concluded that what the expert says on this issue is not sufficient and had given no explanation for why the expert's evidence should not be accepted.
16. Mr Kotas submitted that shunning does not amount to persecution and that the expert's conclusion that Hindu extremist groups may persecute the Appellant is equivocal and speculative. He submitted that the judge referred to the correct standard of proof at the end of paragraph 43 when in concluding that there is no reasonable degree of likelihood that the Appellant would be harmed for disobeying her mother or for changing her religious beliefs.
17. I accept that it may appear appears in paragraph 43 that the judge may have applied too high a standard of proof in not accepting the expert's assessment that the mother's followers may harm the Appellant or Hindu extremist groups may persecute the Appellant. However, on a proper reading of the expert's report and the conclusions reached therein as well as the judge's decision, I accept Mr Kotas's submission that the conclusions by the expert are in fact speculative. There is nothing to link the Hindu extremist groups to the Appellant's mother and, whilst the expert refers to the risk of the Appellant being shunned by the community, again the assessment that followers may harm the Appellant appears speculative in that it is not based on any evidence of violence by her mother's followers or any similar followers. Further, the judge properly stated the standard of proof at the end of paragraph 43. Therefore in my view it is clear that the judge's conclusions as to the use of the words "may" and "might" refer to the speculative nature of the opinions expressed rather than revealing a misapplication of the standard of proof.
18. In these circumstances it is clear that the judge has found that the Appellant is not at risk of persecution in her home area. This finding was open to the judge on the basis of the evidence before him. In these circumstances there was no need for the judge to go on to consider the issues of sufficiency of protection and internal relocation.
19. It is contended in the fourth Ground that the judge did not make adequate findings in relation to sufficiency of protection. I accept that the judge did not explicitly consider sufficiency of protection. However this is not material in light of my conclusion above that the judge's findings as to risk of persecution were open to him. In any event there is no material error as to sufficiency of protection in light of the evidence before the judge in relation to this issue. Mr Slatter relied on 3.13.19 of the Home Office India Operational Guidance Note of May 2013 which states:
"Given the lack of law enforcement safeguards including the refusal to register domestic violence complaints, discriminatory attitudes held by the police, failures in conducting effective investigations and corruption, each case should be considered on its individual merits to assess whether effective protection will be provided."
20. The judge considered that there was no risk to the Appellant in her home area but, given that the judge went on to consider internal relocation, I consider that there is no material error in the failure to consider sufficiency of protection in this case. Even if the Appellant is at risk of persecution in her home area and there is not a sufficiency of protection then the judge went on in any event to consider internal relocation.
21. In terms of internal relocation Mr Slatter submitted that the judge materially erred in this aspect also. He submitted that the judge failed to take into account the evidence of the expert in relation to this issue. He referred to page 24 of the expert's report where she said:
"In the Appellant's case the situation is more complex, as India is predominantly a Hindu populated country. The Appellant would face difficulty in internal relocation because of the fact of her conversion. Every community has its members living in different parts of India and thus have their own community centres or places where they could gather and meet and practise their culture. The Appellant, however, would not be allowed to participate given her status of a 'convert'. Thus, wherever she would go her identity of a Hindu convert would follow her. Hindu radicals are very sentimental when it comes to the dignity of their religion which is often disrespected due to conversion of a fellow Hindu. This causes anger and resentment amongst the people of the community which is often witnessed with them resorting to violence."
22. At page 25 the expert also concluded that if the Appellant's mother actually enjoys the level of status and power claimed by the Appellant it would not be difficult for the Appellant's mother and her followers to track the Appellant down with the help of political contacts. It is clear that the judge took this into account as it is recited at paragraph 49. However the judge concluded that the number of the Appellant's mother's followers is relatively small, being put at about 500, and mostly local, and the political connections are mostly local. It is therefore clear that the judge did not accept that the reach of the Appellant's mother and her followers would enable them to track down the Appellant elsewhere in India.
23. Mr Slatter submitted that the judge did not address whether it would be unduly harsh for the Appellant to relocate in India. The judge considered internal relocation at paragraphs 47, 48 and 49. The judge considered there the risk to converts from Hindu nationalist organisations but concluded that there are some risks from non-state actors but the risk cannot be regarded as real and is not condoned by the state. The judge concluded that the evidence does not justify the view that Christian converts are generally at risk in India. It is clear that the judge was aware of the Appellant's personal circumstances.
24. Mr Slatter said that the evidence before the judge in relation to the unduly harsh issue was at paragraph 44 of her witness statement where the said:
"It is very dangerous for a woman to move out of the family unit and not be under the supervision and protection of her family without her family's support. She said that she would be a lone woman upon return and that no one would want to have anything to do with her as she would be seen as a woman of bad character and that her life would be in danger."
25. She said that a woman on her own in India is never safe, she needs the protection of her father, her grandfather, uncle, her husband to be safe and that she could not live as a lone woman in India and she would be at risk of being raped or killed. Mr Slatter relied on page 45 of the Appellant's bundle which contains an extract from barnabasfund.org/news and states that India's Christians suffer discrimination and at page 47 of the Appellant's bundle which contains an extract from an article in Crux which talks about attacks on Christians. However, none of this evidence corroborates the Appellant's assertion that it would be unreasonable or unduly harsh for her to relocate as a lone woman. In my view the judge's consideration of the issue of internal relocation took into account of all of the evidence before him and was sufficient.
26. Having considered all of the Grounds of Appeal I am satisfied for the reasons given above that the judge made no material errors in the assessment of the risk of persecution upon return to the Appellant's home area, sufficiency of protection in the Appellant's home area or the assessment of the option of internal relocation within India. For these reasons I am satisfied that there is no material error in the judge's decision.
Notice of Decision
27. The decision of the First-tier Tribunal does not contain any material error of law. The decision of the First-tier Tribunal shall stand.
28. No anonymity direction is made.
29. No fee is payable and therefore there can be no fee award.



Signed Date: 25 January 2017


Deputy Upper Tribunal Judge Grimes