Tribunal decisions

The decision

IAC-FH-CK-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09096/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 4 November 2016
On 19 January 2017
Prepared 4 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Mr Mohammed Zakir Hussain Moni
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Smith, Counsel, instructed by Duncan Lewis & Co Solicitors (Harrow Office)
For the Respondent: Mr Bates, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant, a national of Bangladesh, date of birth 1 December 1976, appealed against the Respondent's decision, dated 2 June 2015, to refuse a claim to be in need of protection under the Refugee Convention and also in the alternative of Humanitarian Protection under the Qualification Directive. The refusal is extensively set out in a decision letter dated 2 June 2015. The matter came before First-tier Tribunal Judge Pooler (the judge), who on 4 July 2016 dismissed the appeal on all grounds including Article 8 ECHR and under the Immigration Rules. Permission to appeal the judge's decision was given by First-tier Tribunal Judge Adio on26 July 2016.
2. Ms Smith argued that the judge has made in effect a decision inconsistent with the positive credibility and consistency findings which the judge had found of the Appellant's account. It is correct to say that the Appellant had come to the United Kingdom initially in 2008 where he had remained before returning to Bangladesh. The Appellant and children with his wife had entered the United Kingdom in 2011 on the basis of his wife having a student visa issued at an earlier date. The Appellant's claim to be at risk of persecution arises from his employment with a Dhaka businessman, Mr Sawkat, who, it was said, had influence with the local police and because of his association and business partner's connections to the government through a Mr Mohzam, a politician who subsequently became a government minister.
3. The judge certainly did [at D 20, 24, 25, 26, 27, 28, 29 and 30] accept much of what the Appellant had said and found the Appellant credible. The judge also accepted that Mr Sawkat was a businessman who had connections with Mr Mohzam and others: The former being a government minister in the Awami League Party (ALP). ALP is still in power, I am told by Ms Smith.
4. The judge also was provided with some background evidence which indicated various matters about risks that may be posed. The judge ultimately concluded that the risks posed in the home area, namely Dhaka and I assume its conurbation, which is pretty substantial in size, were such that there were real risks of ill-treatment there. The judge did not accept that risk extended throughout the very populous country of Bangladesh and concluded that there were other cities where the Appellant could reasonably go. The difference between the cases is simply this: is the Appellant says he is at risk throughout the country from state agents or those with connections to the authority who could persecute him or give rise to serious ill-treatment. The judge considered and found that there was not such risk and that internal relocation was a reasonable option even though the Appellant had subjectively based fears as to what might still happen to him elsewhere in Bangladesh.
5. In this respect the matter was entirely one for the judge on the evidence that was provided and the arguments that were advanced. The Upper Tribunal should not interfere with judges' decisions because it might have formed a different view on the same evidence. Rather if there is a lack of reasons or inadequacy of reasons, but not exclusively, in the light of the material before the judge then an error of law will arise. Although I might not have reached the same decision I do not find the judge's decision discloses an inconsistent basis but rather there is a large measure of acceptance that the Appellant was a reliable witness but that his, that is the Appellant's assessment of risk was not sustainable. Accordingly I do not find it is appropriate for me to interfere in that decision, which the judge was entitled to make.
6. It is also apparent that the judge looked at the Immigration Rules. I do not see any cogent argument that would satisfy me that an error of judgment or in law in fact was made as to the application of the Rules and whether the Appellant came within them. Ms Smith wholly correctly emphasises that the two children, who are Bangladeshi nationals, who have been in the United Kingdom since about 2011 have naturally settled in the United Kingdom and have provided a range of evidence which shows the progress they are making. The judge accepted that there was a measure of disruption to them through removal were that to occur and was satisfied that on the information before him there were no exceptional circumstances which went to show that the matter should be looked at outside of the Immigration Rules.
7. It seems to me that that was a decision the judge was entitled to make and the very matters that Ms Smith rightly raised as to the children's best interests equally are the same but the question is whether the circumstances are exceptional. In answer to that question the judge found it was not. I do not see from the arguments put that there were any exceptional circumstances. The position is on the basis that they entered the United Kingdom the parents were aware of the limited period of time in which the Appellant's wife held a visa and an integral part of being a student coming to the UK is of course that you intend to return at the conclusion of your studies. It is clear that the Appellant did reasonably promptly after entering the UK claim protection but I do not see that makes the matter any better in terms of the assessment of exceptional circumstances. The judge took into account the public interest and obviously the importance that is attached to it by Parliament through Section 117A - C of the Nationality, Immigration and Asylum Act 2002 as amended.
8. The judge did, although not required to, look at the matter outside of the Rules but gave very cursory reasoning for taking the view that the Respondent's decision was proportionate. In the circumstances and in the light of the above it does not seem to me that any inadequacies in that exercise are material or would lead to a different decision arising for the real crux of the matter was whether there are exceptional and compelling circumstances.
9. In the circumstances, I do not find the Original Tribunal made material errors of law in the assessment of the evidence that was provided.

NOTICE OF DECISION
The appeal is dismissed.
No anonymity direction is made.

Signed Date 12 December 2016

Deputy Upper Tribunal Judge Davey

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 12 December 2016

Deputy Upper Tribunal Judge Davey