Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA052762015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 June 2016
On 15 June 2016

Before

UPPER TRIBUNAL JUDGE GOLDSTEIN

Between

ST
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss R Head, Counsel, instructed by Lawrence Lupin Solicitors
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellant, a citizen of Bangladesh, born on [ ] 1971, against the decision of First-tier Tribunal Judge Rowlands following a hearing at Harmondsworth on 15 January 2016 and promulgated on 17 February 2016, who dismissed the Appellant's appeal against the decision of the Respondent dated 24 March 2015 to refuse to grant him asylum under paragraph 336 of HC 395 (as amended) and to remove him from the United Kingdom by way of directions under Section 10 of the Immigration and Asylum Act 1999.

2. The brief immigration history of the Appellant is that on 11 November 2007 he applied for a Family Visit Visa which was refused on 20 November 2007. A subsequent appeal against that decision on 21 December 2008 was successful. The visa remained valid until 1 September 2009.

3. On 26 February 2015 the Appellant was encountered at a restaurant in Castle Douglas where he was found to be working illegally. He attempted to evade detection by hiding in the cellar. He was then issued with an IS.151A as an Illegal Entrant: Verbal Deception. He was taken to Dumfries Police Station where his Screening Interview was conducted. He was then detained.

4. On 3 March 2015 the Appellant was accepted into the Detained Fast Track Process and on 13 March 2015 following his arrival at Harmondsworth IRC he was inducted into the Fast Track Process. On 20 March 2015 a substantive asylum interview was conducted.

5. It was noted by Upper Tribunal Judge Coker in granting permission to appeal on limited grounds, that in determining the appeal on asylum grounds, the First-tier Tribunal Judge considered the two elements of the Appellant's claim, namely: risk because of his journalistic activities and political activities in Bangladesh and; his claimed conversion to Christianity.

6. Whilst the Appellant in his grounds asserted that it was not sustainable that the Judge should place no weight upon the Appellant's journalistic past; and that the Judge failed to give proper consideration to the Appellant's evidence as to his term of employment, it was the view of Upper Tribunal Judge Coker that as there was no specific reference to the Appellant's evidence as to the terms of his employment, the First-tier Tribunal Judge had given adequate reasons for discounting the genuineness of the Press Pass. The Judge had referred in detail to the evidence produced by the Appellant and the lack of what could have been available to support his contention that he was a journalist, and he was involved in journalist activities.

7. However as regards the Appellant's claim to have converted to Christianity it was considered arguable that the First-tier Tribunal Judge had failed to give adequate weight or provide adequate reasons for placing little or no weight on the evidence of witnesses that the Appellant was a genuine convert.

8. Upper Tribunal Judge Coker continued that it was "arguable (that) the picking of answers to some questions and failing to give credit for other answers tainted the approach to the assessment of (the Appellant's) claimed conversion".

9. She thus concluded that it was arguable that the First-tier Tribunal Judge had erred in law in his findings that the Appellant was not a convert to Christianity and it is on that limited ground alone that permission was granted.

10. In that regard it was the Appellant's claim that whilst in the UK towards the end of 2012 he converted from Islam to Christianity in St Peter's Church in Dumfries and that after converting, he continued to attend church and went to the library to read the Bible. He thereafter lived openly as a Christian. Additionally, he distributed leaflets relating to conversion. On 8 June 2015 he was baptised whilst in detention as a Christian by the Reverend Patrick Wright.

11. It would be as well to set out Ground A in this regard upon which limited leave was granted as follows:

"At paragraph 32 in relation to the Appellant's claim to have prophesied with Jehovah's Witnesses; the judge asserts 'he actually claimed to have gone outdoor to door with Jehovah's Witnesses, even describing them as follow believers. This is palpable nonsense'.

It is submitted in reaching this adverse credibility finding the judge has failed to show impartiality and he instead infected his decision with a prejudicial viewpoint. It is submitted that the judge's description of the Appellant's belief that Jehovah's Witnesses are fellow believers as being "palpable nonsense" clearly impacted upon his attitude towards the Appellant's conversion to Christianity and in turn his finding on this point; it is therefore submitted that the findings reached are unsustainable.

At paragraph 14 the judge asserts: 'He clearly has no loyalties to any denomination. He goes on to state 'I accept that these two letters are genuine and that the writer has no doubt a genuine held belief'. However the judge concludes: 'I am not satisfied of his conversion'. It is submitted that in reaching this conclusion the judge has failed to give sustainable reasons why, if the Appellant was not a convert as claimed, two church leaders had confirmed that he was. It is submitted that in assessing the Appellant's conversion the judge has clearly failed to give valid or sustainable reasons for rejecting the independent impartial evidence of two church leaders confirming the Appellant has converted. The learned judge's attention is drawn to the letter submitted by Reverend Wright who baptised the Appellant; he in fact asserts that both he and Chaplain Paul Harland believe that the Appellant is a sincere convert and Paul attended the hearing to support the Appellant. It is submitted that the judge has further failed to give due consideration to the submission on the Appellant's behalf that knowledge has little to do with a genuine conversion and experience. The judge has ignored the Appellant's expression about why he converted and his spiritual awareness and instead has taken a limited view about the Appellant's knowledge. It is submitted that when considering questions of a spiritual conversion it was incumbent upon the judge to consider the Appellant's spiritual testimony and not just the factual knowledge; in any event the judge has failed at all to consider the correct answers the Appellant gave to questions put to him about Christianity at the hearing and has focused entirely on some responses at interview; it is submitted that the judge was not entitled to pick and choose which parts of the Appellant's evidence he wished to rely upon to reach an adverse credibility finding; it is submitted that the judge's approach to the Appellant's conversion is insufficient and unsuitable."

12. The First-tier Tribunal Judge in summarising the Appellant's evidence before him had inter alia this to say so far as it related to the Appellant's claimed conversion to Christianity.

"15. He was asked then about his religion whether he had converted to the Catholicism. He said that Catholicism was part of Christianity.

16. He was asked about the rallies and meetings that he attended and he said that he had contacted them and went to meetings. He last went the Wednesday before the hearing. It was put to him in his asylum interview that he had said that the last time he had been was in 2010 and he said that he had started again in August 2015. He had told them that he needed a letter of support of them.

17. He was asked why he had said he was a Muslim in his screening interview and he said that they asked me what was in his passport, he had lost his passport at the time. He said that he was vague because he was learning about the religion and he did not have a good guide to help him. He was asked whether he was just simply claiming to be a Christian to help his claim. He said he did not even think about that. He said there were twelve apostles. Judas had betrayed Jesus. It was put to him that he had claimed to be handing out Jehovah's Witnesses' leaflets at one point and why would he do that, and he said that they had taken him with them. He said that Jehovah's Witnesses believers .... he went to the church. He said he had made a few mistakes but he knew it now."

13. In summarising the submissions of the party's representatives before him, the Judge's summary of the closing submissions of the Appellant's representative suggests that scant reference was made by the representative to the Appellant's claimed conversion to Christianity save that at paragraph 29 the Judge recorded that the Appellant's representative in stating that there were three aspects to the Appellant's claim maintained that "each aspect was dealt with by independent evidence".

14. In summarising the Respondent's representative's submissions the Judge noted the following submission:

"27. As to his religious conversion, although the documents provided were accepted as genuine, it was not accepted that his claimed conversion was. In his screening interview he said that he was Muslim, it was not accepted that he was asked what was in his passport."

15. The Judge at paragraph 30 of his decision pointed out that he had considered

"All of the evidence in this case including that to which I have not specifically referred and reached the following conclusions. I am satisfied the Appellant has told the truth about his identification and nationality but I am afraid to say that that is where his credibility ends. He has told so many untruths that he has clearly lost sight of where his lies end and the truth begins".

16. The First-tier Tribunal Judge proceeded to comprehensively reason as to why he had reached that conclusion and made adverse credibility findings as to the Appellant's claimed past experiences in Bangladesh, that are not the subject of the appeal before me,

17. At paragraph 39 of his decision the Judge continued:-

".. that simply leaves then the last element of his claim which is his conversion to Christianity."

18. It would be as well to set out below the judge's adverse findings in that regard as follows:

"40. The Appellant says that he was converted in a Catholic Church in Scotland. He has not provided any evidence of his connection to St Peter's Church. In interview he said that he had been delivering leaflets for Jehovah's Witnesses and confirmed this was before me. He actually called them fellow believers. I am not sure how accurate a statement that would be. He clearly has no loyalty to any denomination. In support of his claimed conversion he has provided a letter from the Reverend Peter Wright of the Evangelical Church who performed his christening while in detention, clearly not Catholic. He also provided a supporting letter from a Pastor in a Baptist Church. I accept that these two letters are genuine and that the writers have no doubt a genuinely held belief. I note that Mr Richards actually makes no comment as to the genuineness of the Appellant's conversion, simply referring to the practicalities of him requiring a Bible in Bengali. It was clear during the interview that, despite him claiming to have converted since 2012, the there years since then did little to add to his knowledge of his faith. He had no ideas what Easter was about. Although he knew that there were two testaments he clearly had only a scant knowledge of Christianity. I am sad to say it seems to me that this is a cynical attempt by him to create a claim where none exists. I am not satisfied of his conversion or of his intention to continue to worship if returned and I am therefore not satisfied that he would be at risk of persecution on return to Bangladesh because of his religious beliefs.

41. As I have already stated, the Appellant has shown himself to be someone who is prepared to lie and produce false documents both to the authorities and even to Courts in order to get what he wants. He cannot be trusted to be telling the truth."

19. The Judge repeated that having considered the evidence in its totality, both oral and documentary that the Appellant had failed to discharge the burden of proof upon him to the requisite standard to establish that he had a well-founded fear that he would be persecuted for a Convention reason if he was now to be returned to Bangladesh.

20. The appeal before me is concerned only with the question of whether the First-tier Tribunal Judge made an error of law of a nature such as to require his decision to be set aside. It is only if that question returns a positive answer that it is open to the Tribunal to disturb the decision of the First-tier Tribunal Judge.

21. In that regard I have also taken account of the Rule 24 response of the Respondent in her letter dated 27 April 2016 where the following was stated:

"The Respondent opposes the Appellant's appeal. In summary, the Respondent will submit inter alia that the Judge of the First-tier Tribunal directed himself appropriately."

Upper Tribunal Judge Coker granted limited permission in this matter finding that it is arguable that the judge failed to give adequate weight or provide adequate reasons for placing little or no weight on the evidence of the witnesses that the Appellant was a genuine convert. It is arguable that picking answers tainted the approach to the assessment of his claimed conversion. Judge Coker finds it arguable that the First-tier erred in law in the findings that this Appellant was not a convert to Christianity.

It would be submitted that the judge considered fully the issues of Christianity, noting at paragraphs 15 and 27 the answers given by the Appellant in interview. At paragraph 32 the judge finds the Appellant 'consistently tried to disassociate himself with the answers he gave in interview. The truth is he told them he was a Muslim and never mentioned his Christianity in his screening interview. This wholly undermines his claimed conversion. At the hearing he actually claimed to have gone out door to door with Jehovah's Witnesses even describing them as fellow believers. This is palpable nonsense'.

The judge goes on to consider the claimed conversion from paragraphs 39 - 40 of the determination. At paragraph 40 the judge (having considered the RFRL in paragraphs 35-40) finding that 'the Appellant has clearly no loyalty to any denomination ... It was clear during interview despite him claiming to have converted in 2012 the three years since then did little to add to his knowledge of his faith. He had no idea what Easter was about and although he knew that there were two testaments he clearly only had scant knowledge of Christianity.

The judge finds this is a cynical attempt by him to create a claim where none exists. The judge finds that he is not satisfied of his conversion or his intention to continue to worship if returned and therefore not satisfied that he would be at risk of persecution due to his religious beliefs.

It is submitted the judge has dealt with the issue of Christianity including the evidence of Reverend Peter Wright of the Evangelical Church who baptised him whilst detained and the letter from a Pastor in a Baptist Church.

It will be respectfully submitted that looked at on the facts of this Appellant's lack of knowledge of Christianity and lack of 'loyalty' to any denomination, ... Catholicism, Jehovah's Witness, Evangelical and Baptist, it is difficult to see how any rational Tribunal could reach an alternative conclusion that this Appellant is making a 'cynical attempt to create a claim where none exists."

22. I have considered the bundle of documents supplied by the Appellant's solicitors before the First-tier Tribunal Judge and the supplementary bundle before the Judge and those placed before me today.

23. Insofar as they relate to the Appellant's claimed conversion, the Appellant over paragraphs 10-14 of his statement dated 5 January 2016 had this to say:

"10. In response to paragraph 36 of the refusal letter I wish to clarify that I provided my baptism certificate to corroborate my conversion to Christianity. In relation to my knowledge of Christianity I believe I have to explain why I decided to conversion in the first place. Back in Bangladesh, I believe I was a very good person but have already received bad in return. I tried to fight for the freedom of my country and for the people and in return I was beaten, tortured and persecuted. When I got to this country I was helpless. I had no guidance. Then I found some amazing people in Scotland who helped me out of Christian charity. I started asking myself why all these people were so nice to me and realised they were all Christians. I started believing being Christian meant being good and I felt I was like that so I started following them. I started going to church with them and listening to mass. I never had any sort of official teaching and the language barrier was also an issue. All I knew I basically taught myself by trying to read the Bible and going to church.

11. It was not until I reached the detention centre at Harmondsworth that I was given a proper teaching on Christianity. I would meet daily with Paul who was a preacher at the detention centre and speaks Bengali or Patrick, the reverend of the centre and we would discuss the Bible passages. He basically went through the whole of the New Testament over a period of approximately two or three months. I had the opportunity to have a much deeper Knowles of this religion and I followed all the steps to be able to be baptised as a Christian. I was, in fact, baptised by the reverend of the detention centre on 1 June 2015. Even before having a certificate I felt I was a Christian because I am a Christian in my heart and in my brain. The certificate is just a confirmation of this, a piece of paper.

12. Since I was released from detention in July 2015 I have been practising my religion by going to church and also in a more intimate way by praying on my own when I cannot go to church. When I go to church I normally attend the Evangelical Church in Chesham."

24. At paragraph 14 of his statement, the Appellant stated that as a Christian convert he would be targeted in Bangladesh because he was born into a Muslim family and that he would not be free to practice his religion anywhere in the country and that he would be seen as a traitor to Islam and would be persecuted for it.

25. I have reminded myself that at paragraph 30 of his decision, the Judge stated that he had considered all the evidence in the case "including that which is not specifically referred to ..." Further, that whilst the Judge was required to explain why he reached his conclusions, he was not required to assemble and set out in the determination everything that was capable of supporting a contrary view. The fact remains however that there is no reference to what the Appellant had to say as regards his claimed conversion in the above statement.

26. Nonetheless as the judge reminded himself, the onus was on the Appellant to prove his claim to the requisite standard and although this is not mentioned by the Judge in his decision, it is perhaps from the Appellant's point of view regrettable that the Reverend Wright was not present at the hearing to give oral evidence on the Appellant's behalf. I do not know whether indeed the Appellant made any attempt to secure his attendance for that purpose. It is not for me to speculate and it may be that there were logistical reasons as to why the Reverend could not attend.

27. The grounds upon which permission to appeal was granted stated that Chaplain Paul Harland Haralnd attended the hearing to support the Appellant although I am told that he did not give oral evidence.

28. It is clear that the Judge having reached a finding that the Appellant's claimed conversion and motivation and his account of past events in Bangladesh were not credible, that in consequence, he did not proceed to consider whether even taking the Appellant's claim in that regard at its highest, there was satisfactory background material/case law guidance to support the Appellant's claim as set out in his Counsel's skeleton argument before him at paragraph 22 that the Appellant feared persecution on return from the Awami League, the current ruling government and from society, government and vigilantes due to his conversion to Christianity.

29. Miss Head on behalf of the Appellant submitted to me that she relied on the grounds and maintained that the First-tier Tribunal Judge had given insufficient reasons for dismissing the evidence in the letters from the Reverend and the Pastor, he having accepted that the authors of those letters were genuine religious leaders and Christians. She maintained that insufficient weight was placed on what they said about the Appellant's conversion. It was incumbent on the Judge to explain why he did not accept the testimony of these two church leaders that the Appellant was a genuine convert and having accepted their evidence to be genuinely reliable and that they were individuals of some standing, the Judge was required to give some reasons as to why he did not, in such circumstances, accept that their knowledge of the Appellant had led to a genuine conversion.

30. Whilst Miss Head accepted that neither gave oral evidence at the hearing in support of the Appellant's appeal, the content of their letters was not challenged. Miss Head took issue with the last line of paragraph 32 of the Judge's decision, namely "At the hearing he actually claimed to have gone out door to door with Jehovah's Witnesses, even describing them as fellow believers. This is palpable nonsense".

31. Miss Head continued that it was the Appellant's evidence that they were fellow believers and that for the Judge to say "palpable nonsense" adversely impacted on his other reasoning.

32. Miss Head submitted that whilst at paragraph 40 of his decision, the Judge had dealt with the conversion he had failed to take account of the Appellant's answers at interview or the direct answers he had given in oral evidence at the hearing.

33. Whilst she accepted it was "an interesting point" that one had to consider the Judge's reasoning as a whole and not just in isolation in terms of the Appellant's claimed conversion, the fact remained that the Appellant's claimed conversion to Christianity was "a separate point of his case and required a separate assessment".

34. When I asked Miss Head if that was not the approach that the Judge had taken, she responded that it "was a flawed assessment for the reasons I have given in that the judge has been selective in terms of the negative aspects". Miss Head submitted that the judge had chosen to rely purely on the negative rather than add sufficient weight to the evidence of the two ministers as to the genuineness of the Appellant's conversion.

35. I then heard the submissions of Mr Duffy for the Respondent to which in response, Miss Head in further reference to paragraph 40 of the decision, repeated that the Judge had been selective.

36. I reserved my decision which I now give.

Assessment

37. I have considered with care both the evidence before the First-tier Tribunal Judge, his decision and the submissions of the parties' representatives before me.

38. I have concluded that the First-tier Tribunal Judge did not materially err in law within his decision. I am satisfied that upon a reading of the Judge's decision as a whole, it is apparent that he directed himself appropriately and gave cogent reasons as to why the Appellant was not credible and in those circumstances he was entitled to allow those adverse credibility findings to inform his view as to whether the Appellant's conversion (described by Mr Duffy in his closing submissions to me as ("an eleventh hour conversion") was genuine or not.

39. I find that contrary to the assertion in the grounds, the Judge did give adequate and appropriate reasons for rejecting the Appellant's claimed conversion.

40. Such is readily apparent upon a consideration and reading of paragraph 40 of the decision as a whole that I have set out above. In that paragraph, the Judge clearly acknowledged the evidence of the Reverend and the Pastor and accepted that their letters were genuine and that the views that they expressed as to the genuineness of the Appellant's conversion were sincerely held, but he proceeded to identify the reasons as to why on his consideration of the evidence, he did not agree.

41. Indeed, at paragraph 41, the Judge continued that as he had earlier stated, the Appellant had shown himself "to be someone who is prepared to lie and produce false documents both to the authorities and even to courts in order to get what he wants. He cannot be trusted to be telling the truth."

42. The Judge continued at paragraph 42 to stress that he had had regard to the totality of the evidence both oral and documentary in reasoning his conclusion that he must dismiss the Appellant's appeal.

43. The Judge was entitled to find upon his consideration of the evidence, that the Appellant's lack of knowledge of Christianity and lack of clarity as to whether he followed Catholicism or Jehovah's Witnesses or the Evangelical and Baptist Church, (and bearing in mind all his other sustainable reasons for finding the Appellant was not credible) that so far as this particular aspect of the Appellant's claim was concerned it was no more than a "cynical attempt by him to create a claim where none exists".

44. One has to bear in mind, that as found and noted by the Judge, the Appellant initially claimed that he belonged to and was baptised by the Roman Catholic Church. However it then became apparent that he had been baptised when in immigration detention by the Church of England. Jehovah's Witnesses are a sect that are completely different from the Roman Catholic Church. There is reference to a Baptist Church but that is a Protestant Church. Then there is a reference to an Evangelical Church.

45. It is apparent the Judge took all these factors into account in concluding that he did not believe the genuineness of the Appellant's claimed conversion despite the letters from the Reverend Wright and the Pastor.

46. I find that that the Judge was entitled to conclude that to be an apparent member/ follower of four distinct elements of the Christian faith was inconsistent with membership of a Christian Church and it was therefore open to the Judge for that reason and others that he identified in his decision, to reach the conclusion that he did.

47. In considering the First-tier Tribunal Judge's decision, I have been mindful of the case law guidance in Shizad (Sufficiency of reasons; set aside) [2013] UKUT 00085 (IAC) the head note of which states as follows:

"(1) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge.

(2) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant country guidance has been taken into account unless the conclusion the judge draws from the primary data were not reasonably open to him or her."

48. In Shizad it was made clear that reasons for conclusions in these central issues of appeal need not be extensive if the decision as a whole makes sense. In the present case and upon my consideration of the Judge's decision, I find that comprehensive reasons were provided by the Judge for his conclusions. This is not a case where such reasoning could in any sense be described as inadequate. It is apparent that the Judge's decision reveals no misdirection of law. Further, the Judge's fact finding process cannot be criticised.

49. Mindful also of the guidance of the Court of Appeal in R (Iran) [2005] EWCA Civ 982 I find that it cannot be said that the First-tier Tribunal Judge findings were irrational and/or Wednesbury unreasonable such as to amount to perversity. It cannot be said that they were inadequate. This is not a case where the First-tier Tribunal Judge's reasoning as to the appellant's claimed is such that the Tribunal was unable to understand the thought processes that he employed in reaching his decisions.

50. I find the Judge properly identified and recorded the matters he considered to be critical to his decision on the issue as to the genuiness of the Appellant's claimed conversion to Christianity raised before him in this appeal. The findings he made in this regard were clearly open to him on the evidence and thus sustainable in law.

Decision

51. The making of the previous decision involved the making of no error on a point of law and I order that it shall stand.

52. The First-tier Tribunal Judge made an anonymity direction. There was no application before me to remove it and it therefore remains in place.

Signed Date 3 June 2016

Upper Tribunal Judge