Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA099532014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25th May 2016
On 10th June 2016

Before

upper tribunal DEPUTY judge ROBERTS

Between

MR M B
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms G Capel (Counsel)
For the Respondent: Mr Tufan (Senior Home Office Presenting Officer)

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. As a protection claim, it is appropriate to continue that direction.

DECISION AND REASONS
1. The Appellant MB is a citizen of Pakistan born [ ] 1971. He entered the UK on 6th November 2010 in possession of a Tier 4 (Student) visa valid until February 2012.
2. He applied to extend this visa, but his application was refused twice by the Respondent; the first time in 2012 and the second time in 2013. Following those refusals the Appellant applied for asylum on 30th October 2014.
3. His application for asylum was refused and a decision was taken on 18th November 2014 to remove him from the UK. The Appellant appealed that decision to the First-tier Tribunal. Although there was a hearing and a subsequent decision made on that appeal, the decision was set aside for procedural irregularity following the decision of the Court of Appeal in The Lord Chancellor v Detention Action [2015] EWCA Civ 840. The Court of Appeal found that the "fast track" element of the Immigration Rules was unlawful.
4. The Appellant's appeal therefore was heard afresh and came before the First-tier Tribunal (Judge Maxwell) which in a decision promulgated on 29th March 2016 dismissed the Appellant's appeal on asylum, humanitarian protection and human rights grounds. The Appellant now appeals with permission to the Upper Tribunal.
5. The Appellant's claims to international protection, are set out in [17] to [24] of the FtT's decision. In summary they amount to this. The Appellant fears return to Pakistan because of the actions of a neighbouring family called 'B', who according to the Appellant [runs] a mafia type organisation. It is also claimed that the local police are in their pocket. The Appellant says that his problems began in 2007 when three brothers from the B family targeted him and his family, by placing their drainage over his land. This led to an argument between members of the appellant's family and the B family. In retaliation for this the B family arranged for a false First Information Report (FIR) of burglary and theft to be issued against the Appellant's father and other "unknown persons". The Appellant's father was arrested by corrupt police officers and when the Appellant and his brothers complained, they too were arrested and detained. The Appellant was released after two days but his father and brother were held for two months and subjected to torture. They were held without charge. The Appellant however reported this to a District Police Officer who is a higher authority. He forced the corrupt officers to formally record the false case against the appellant's father. This led to the case collapsing at court, as the B family did not attend to give evidence.
6. In 2009 the Appellant began collecting evidence against the B family regarding false allegations and intimidation and this evidence was presented to the local police but the investigation stalled and no action was taken.
7. The Appellant then received information that the B family were planning to attack him, so he left Pakistan and came to the UK as a student.
8. Whilst in the UK, the Appellant received information that another false allegation had been issued against him, this time alleging that he was trafficking people into the UK and was guilty of embezzlement. He claims therefore that he is wanted in Pakistan and fears returning there as he would be arrested and tortured by corrupt officials based on these false allegations. In addition, the Appellant's family, it is said, still live in fear within Pakistan. The Appellant's brothers are constantly on the run for fear of being located and detained by the authorities and recently the Appellant's nephew was shot as an act of vengeance by members of the B family. I pause here to note that the grounds seeking permission claim that the Appellant's nephew was shot dead in a contract killing that the family attribute to the B family. I can find no evidence that the Appellant's nephew, has died. There is evidence to say he has suffered serious multiple injuries, but the statement in relation to this incident indicates that the perpetrators, were "unknown" people who came to the house.
9. By way of background, the Appellant comes from a family who are considered to be of the lowest possible caste within Pakistan; the Musalli. His claim is that individuals of this caste are regularly ill-treated and discriminated against by those of a higher caste, such as the B family. Nevertheless, the Appellant is an educated man. He attended school in a nearby town when younger, followed by completion of a bachelor's degree and a master's degree in Pakistan. Before coming to the UK, he was employed as a high school teacher, employment which he enjoyed from February 2006 to November 2010. The Appellant is married. His wife remains in Pakistan. From the information before me she remains in their family home in Lahore and she too is employed as a school teacher.
10. In support of his claim to require international protection, the Appellant submitted various documents which, the FtT noted, included an FIR detailing false allegations made against the Appellant and his family, FIR made by the Appellant against police officers and two expert reports.
11. The first expert report was compiled by Dr Niaz Shah who commented on the accusations made against the Appellant and the social standing of the Appellant as a Musalli. The second expert report was a medico-legal report from Dr Ranu, who was instructed to prepare a report based on a direct medical assessment of the Appellant. Dr Ranu was instructed to document physical evidence of scarring and to establish whether or not there is a reasonable degree of likelihood that the Appellant's scarring is consistent with his account of torture/ill-treatment in Pakistan. The FtT took full account of those reports.
12. The FtT identified that the Appellant's claim amounted to a fear of the B family on account of a number of reasons including a land dispute, false allegations against him and his family member and a claim that the B family's influence stretched to the police. The claim is that the influence of the Bhatti family is such that the Appellant's family live in fear within Pakistan as a whole [21].
13. The FtT also took into account the report of Dr Shah and at [25] said the following:
"25. In support of his appeal, the appellant relies upon a report commissioned from Dr Niaz A Shah who, I note, was an expert witness in a number of country guidance cases. I do not intend to rehearse the contents of his very detailed report however his conclusions, set out at page 9 of the report are worthy of reproduction in full:
Musallis are seen and treated as lower class of society. Generally they are not persecuted but are unlikely to be treated fairly if their interest conflict with the interests of people from non-Musalli background especially rich and influential people.
Pakistani law treat everyone equally irrespective of caste or creed. Case law suggests that the 'equality clause' of the Constitution is applied by the superior courts.
The constitution of Pakistan guarantees the right to a fair trial. A body of case law indicates that it is applied by the superior courts went further trial guarantees are not observed by actors of the justice system (including courts).
It is very likely that (MB) will get a bail and that he will receive a fair trial irrespective of his cast or social status. Court decision supplied in the bundle by (MB) indicate that (MB) and his brothers were treated according to the law.
The police is politicised and susceptible to corruption and may help treat (MB) because of his low caste but the superior court can provide remedies against it. (MB) may approach the High Court or Magistrate court if he feels that he is ill treated. In other cases, courts have given relief to him and his brothers."
14. At [26] the judge said the following:
"26. The appellant also relies on what is described as 'Confidential Provisional Medico-Legal Report' commissioned from Dr Amandeep Singh Ranu. It does not appear that the appellant suffers from any post-traumatic stress disorder and although some scarring appears on him, in the main these scars either bear no relationship to his claim or, at best, demonstrate moderate support. There is no injury which of itself would give cause for concern and it is a worthy of note that Dr Ranu does not suggest at any point that there is evidence before him that leads him to the conclusion that the Appellant was a victim of torture."
15. The judge notes at [28] that to succeed in a claim for asylum, an Appellant must prove to the necessary standard that he has a well-founded fear of being persecuted for a Convention reason. He says it is not the Appellant's case that his fear arises from racial, religious, national or political grounds whether real or imputed. His case is that he is "a debtor who cannot repay his debt" and "will be killed or seriously injured by his creditors".
16. That is not the full story of the Appellant's claim and what the Appellant's claim amounted to could have been better expressed by the judge. The Appellant claim is that there is a false allegation against him for people trafficking and embezzlement rather than an inability to repay a debt. That false claim would it is said lead to him being arrested on return to Pakistan and suffering at the hands of corrupt officers. However I find on a full reading of the decision, that error does not amount to a material one because it is clear that the judge properly identified the issues before him in [21] to [24] and therefore had in mind what he had to decide.
17. The judge also took into account Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and considered that the Appellant did not seek to claim asylum promptly because he came to the United Kingdom in 2010 and did not claim asylum until almost four years later in 2014.
18. Despite that finding however the judge went on to say at [39]:
"For reasons given below, it is not necessary for me to consider the factual matrix of the Appellant's case in any depth and I have arrived at my conclusions on the basis of the Appellant's case being largely accurate. The issue I have gone on to consider further is whether the Appellant's claim, the Bhatti family have the resources to find him anywhere in Pakistan."
19. It is correct that at [40], the FtT erroneously places the Appellant in Pakistan at the time that the false allegations of fraud and people trafficking are made. But I find that nothing turns on that. This is because the judge correctly identified and examined the question of internal flight within Pakistan. The judge concluded that even accepting that the Appellant had suffered persecution at the hands of the neighbouring B family whose influence stretched as far as the local police, there was no evidence to support the Appellant's claim, that their influence stretched throughout the whole of Pakistan therefore making it unreasonable to expect the Appellant to relocate elsewhere in that country.
20. The grounds seeking permission claim that the judge failed to make specific findings on the question of return. I disagree.
21. The judge has clearly set out his reliance upon the Appellant's own evidence. This is that the Appellant is an educated man, who has qualifications and training to gain employment as a teacher [46]. The appellant has not identified any serious health problems.
22. Further the judge found at [44] the Appellant is someone who by his own account (see interview question 23) was able to invoke the aid of a District Police Officer when dealing with corrupt local police officers.
23. In addition the FtT noted [44] that Dr Shah reported that the Pakistani legal system treats everyone equally irrespective of caste or class. Dr Shah reiterated what the judge found at [44] that the Appellant and his family have in the past been treated in accordance with the law.
24. So far as the false allegations against the Appellant regarding the charge of embezzlement and people trafficking are concerned, again the judge reports that Dr Shah notes that it is reasonably likely that the Appellant would be bailed, if indeed he is arrested on return.
25. The FtT found that there was no evidence to support the Appellant's claim that the B family could find him everywhere in Pakistan. That finding was open to the judge, on the evidence set out in [44] to [46] above. Therefore taking those matters into account the judge's conclusion, that internal flight within Pakistan for this Appellant would not be unduly harsh, is sustainable.
26. For the foregoing reasons, I find the decision of the FtT contains no material error requiring it to be set aside. The decision stands.

Notice of Decision

This appeal is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed C E Roberts Date 09 June 2016

Upper Tribunal Deputy Judge Roberts