Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05909/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 21 June 2016
On 9 August 2016
Prepared on 23 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between
F. A.
(ANONYMITY DIRECTION)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Ms McCrae, Counsel, instructed by Hunter Stone Law
For the Respondent: Ms Petterson, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom using his own Bangladeshi passport with the benefit of entry clearance as a work permit holder in September 2004. His leave expired on 28 July 2005, whereupon he became an overstayer.
2. In October 2014 the Appellant was encountered working illegally in a restaurant, and he was duly served on 5 December 2014 with a decision to remove him from the UK by reference to s10 of the 1999 Act. He subsequently accepted that he had given false details about himself to immigration officers, and that he had not claimed asylum either in October or December 2014.
3. The Appellant appealed to the Tribunal, but he did not raise any ground of appeal that asserted a claim to asylum. Indeed it only became apparent that he wished to argue such a ground of appeal upon service of the bundle of papers filed for the first listing of his appeal on 9 June 2015. The hearing of the appeal on 9 June 2015 was adjourned on 8 June 2016 at the Respondent's request once the Respondent had identified that this was his intention, because the appeal was no longer suited for the "float" list in which it then appeared, and, because inadequate time had been allocated to the hearing.
4. The appeal was relisted for 2 September 2015, to suit the convenience of the Appellant's representatives.
5. The appeal was duly heard on 2 September 2015, and it was dismissed by a decision of Judge Fisher promulgated on 18 September 2015. The Appellant's representatives chose to absent themselves from that hearing.
6. The Appellant's application to the First Tier Tribunal for permission to appeal which asserted that the Appellant had been deprived of a fair hearing of his appeal was refused by Judge Andrew on 18 February 2016, since she was not satisfied that it was arguable that the decision to refuse to adjourn had deprived him of a fair hearing of his appeal.
7. The Appellant duly renewed his application to the Upper Tribunal on the same grounds, and permission was granted by Judge Reeds on 14 March 2016. Although the decision does not set this out in terms, it is to be deduced from the grounds that she considered it was arguable that the Appellant had been deprived of a fair hearing of the appeal because the refusal to adjourn the hearing prevented him from adducing evidence to rebut the Respondent's evidence of her investigations into the documents that he relied upon as corroboration of his account of events in Bangladesh, and which he claimed were true copies of genuine FIRs issued in relation to him.
8. The Respondent filed a Rule 24 Notice on 4 April 2016 pointing out that it was the Appellant who had introduced these documents into evidence, and who had asserted that they were genuine and could be relied upon, notwithstanding an obvious reliability issue arising from the content of one of them, namely the reference to the Appellant's involvement in an incident in Bangladesh in 2009, when of course it was the Appellant's case that he had been in the UK continuously since September 2004.
9. Thus the matter comes before me.

Grounds of appeal
10. The grounds refer to an application for an adjournment made to the Tribunal in writing on 28 August 2016, and a renewed application he made on 1 September 2016, and again on 2 September 2016. Ms McCrae was placed in some difficulty by the failure of those instructing her to provide her with copies of all of these applications, and the decisions made upon them, but she was content to proceed on the basis of the excerpts that I read to her from the Tribunal file.
11. The grounds complain that the Respondent served and filed evidence on 26 August 2016, consisting of the report of a Field Liaison Officer dated 25 August 2016. The Appellant requested an adjournment on 28 August 2016 in order to rebut the content of the officer's report. The Tribunal's refusal of that request, and the renewed requests that followed, was said to have denied the Appellant a fair hearing, and the guidance to be found in the decision of Nwaigwe (adjournment fairness) [2014] UKUT 418 was referred to.

History of the adjournment requests
12. By fax of 1449hours on 26 August 2016 the Respondent served upon the Appellant's representatives a report by the Field Liaison Officer Dhaka dated 25 August 2016. The officer had been requested to take such steps as were available to him to verify two documents that the Appellant had produced for the first time in the bundle of documents filed for the hearing of his appeal in June 2015. First, a document that purported to be a genuine FIR (number 105 of 6 June 2009) issued by the Kotowali Police Station, and, second a document that purported to relate to a case at the Kotowali Police Station (number 20(6)2001 dated 17 June 2001).
13. The officer reported that he had travelled to, and met with, the police office in charge of the Kotowali Police Station. He reported that he had been told that the Kotowali Police Station held no records older than ten years, so that it was not possible to verify the document that purported to relate to a case at the Kotowali Police Station (number 20(6)2001 dated 17 June 2001), or verify that there had ever been such a case. The Police Station did however hold records for 2009, and it had been confirmed to him that the document that purported to be a genuine FIR (number 105 of 6 June 2009) issued by the Kotowali Police Station, was not a genuine document, since no such document had ever been created.
14. These two documents were both documents that the Appellant had first produced to the Respondent in a bundle served and filed on 4 June 2015, in anticipation of the hearing of his appeal listed on 9 June 2016.
15. The service of this bundle of documents was the first occasion upon which the Appellant had intimated that he wished to make a protection claim. An application for leave to remain made on 12 May 2010 with the help of Abdin Associates had simply relied upon his Article 8 private life. Moreover the grounds of appeal lodged by his current solicitors only relied upon his Article 8 private life. (Indeed I can discern from the Tribunal file no formal application to amend those grounds of appeal to raise either asylum or Article 3 as a ground of appeal.)
16. The hearing of the appeal was adjourned on 8 June 2016 at the Respondent's request once she had identified that the appeal was no longer suited for the "float" list in which it then appeared because of the protection claim that the Appellant had now advanced. (The time initially allocated to the hearing would also have been inadequate given the issues now raised.) The appeal was relisted for 2 September 2015, to suit the convenience of the Appellant's representatives.
17. I note that there appear in a number of documents the assertion made on behalf of the Appellant that the Tribunal's decision to adjourn the hearing of the appeal on 8 June 2016 was the result of an application by the Respondent in order that she might verify documents produced by the Appellant. There is nothing on the Tribunal file to suggest that this was the case, and on the contrary the documents that do appear upon the Tribunal file record that this was not the case. Ms McCrae accepted that this may simply have been an assumption made by those instructing her.
18. By fax of 27 August 2016 the Respondent served and filed witness statements from immigration officers who had dealt with the Appellant between October 2014 and July 2015 to confirm that at no stage had he intimated to them any fear of harm in the event of return to Bangladesh, and to record that on 23 July 2015 the Appellant had attended the Bangladesh High Commission in London to participate in the process of issuing to him a travel document. Nothing turns upon the fairness of the hearing resulting from the service of this evidence at this late stage for two reasons;
a) it was evidence that was not disputed by the Appellant at the hearing, and,
b) no complaint is made about this late service in the application for permission to appeal.
19. By fax of Friday 28 August 2016 at 1107hours the Appellant's representatives applied for an adjournment of the hearing on 2 September 2016 in order to obtain the further evidence that the Appellant had instructed them existed and which would rebut the Field Liaison Officer's report. The nature, and source, of this evidence was not identified, but an adjournment of six weeks was requested to obtain and serve it. That application was refused with reasons by fax of 28 August 2016;
"The application may be renewed at the hearing but at present it is difficult to see why the dispute cannot be resolved on the basis of the evidence currently available. The "proof" that the Appellant refers to is highly unlikely to be conclusive and the report is perfectly clear in its terms."
20. By fax of Monday 1 September 2016 at 122hours the Appellant's representatives renewed the application, but did no more than repeat the content of the original application. The nature, and source, of the rebuttal evidence that it was said already existed was not identified. That application was refused with reasons by fax of 1 September 2016;
"Leave has been granted to renew the application at the hearing. That remains the case."
21. By fax of Tuesday 2 September 2016 at 0840hours (the day of the hearing) the Appellant's representatives renewed the application once again, and informed the Tribunal that if their application was refused they would withdraw representation. They would not attend the hearing, and Counsel who had been booked to do so, would not now do so. Instead, if necessary, the Appellant would renew the application in person if required. This letter offered no new information in support of the application. Thus the nature, and source, of the rebuttal evidence that was said to exist remained unidentified.
22. The Appellant duly attended the hearing and renewed the application in person. It is plain that at no stage did he suggest that he was unable to represent himself, and he could not of course complain that he had been taken by surprise by the failure of his representatives to attend the hearing, since it was he who had made the decision that they should not do so.
23. The decision records [2] that the Judge enquired of the Appellant what evidence he believed that he would be able to obtain if the adjournment were to be granted. The Appellant's response was that he could obtain a report from the police in Bangladesh to confirm that the documents were genuine.
24. I note that despite the passage of time no such evidence has subsequently been produced. I also note that the Appellant did not claim to the Judge that there already existed evidence that would rebut the content of the Field Liaison Officer's report.
25. The Judge refused the renewed application because he was satisfied that he could reach a view upon the weight that could properly be attached to the documents relied upon by the Appellant, after hearing the Appellant's oral evidence, and after looking at the evidence in the round [3].

Error of Law?
26. Ms McCrae adopted the grounds of the application in order to argue that in all the circumstances of this case the Appellant had been deprived of a fair hearing of his appeal. Ms McCrae accepted that the Appellant had not been entitled to an adjournment of the hearing of his appeal simply upon demand, and that the burden now fell upon the Appellant to demonstrate that the Judge had made a material error of law in refusing the application by denying the Appellant a fair hearing. It was not suggested that the Judge had acted irrationally, had failed to apply the correct test, had failed to take into account any material consideration, or had taken into account any immaterial consideration; Nwaigwe @ [7]. Accordingly, with the appeal so framed, the true test was not whether the Tribunal acted reasonably, but whether the Appellant was deprived of a fair hearing. Fairness, and not reasonableness, being the supreme criterion.
27. Ms McCrae accepted that despite the passage of time since 2 September 2015 the Appellant had not been able to obtain any evidence from the Police in Bangladesh (whether from a senior officer at the Kotowali Police Station, or, from a senior officer at either a national or regional level). Thus the Appellant has never been able to produce the evidence which he identified to the Judge as being available to him in the event of an adjournment to provide a rebuttal to the information given to the Field Officer on 25 August 2015 by the police officer in charge of Kotowali Police Station.
28. Although Ms McCrae made no reference to it in the course of her submissions, I note the letter of 20 September 2015 from Md Azim Uddin that is contained in a bundle of documents filed with a Rule 15(2A) application on 21 April 2016. This is the only material that has ever been produced subsequent to the hearing on 2 September 2015 that could be said to be relevant to the issue of the reliability of the documents that the Field Liaison Office sought to verify at the Kotowali Police Station. I also note that some nine months have now elapsed since the hearing below [ApB2.p23].
29. The letter of 20 September 2015 is on any view a curious document. The author represents himself to be the Appellant's retained lawyer in Sylhet. As such one might expect the author to be fully aware of the details of any charges or complaints to the police made against the Appellant in the past. The author claims however to be unsure which police station he should approach for evidence to rebut the Field Liaison Officer's report, despite the repeated references therein to the Kotowali Police Station. The author does not claim to have approached any police station that could be described as the Kotowali Police Station. Nor does he claim to have taken any steps to identify whether there was more than one police station that would fit that description, or, to list them. He does however claim to have approached a different police station, which he does not identify, and he claims to have spoken to a police officer, who he does not name, apparently be telephone. There is no obvious explanation for such an approach, and the author does not in my judgement offer one.
30. Not surprisingly given the circumstances of the enquiries that he says he has made, the author is able to state that the unnamed individual with whom he has spoken has no record of any investigation by the Respondent on 25 August 2015. It is extremely difficult to see how any Tribunal properly directing itself could place any significant weight upon this claim. Although the author offers the opinion that it is likely that inaccurate information was given to the Respondent no other basis is given for that opinion in the letter, save for the author's own unsupported opinion that the police in Bangladesh are content to provide false information regarding political opponents. The author goes on to confirm that the cases filed against the Appellant are genuine and real, although no other basis for that opinion is provided.
31. Having reviewed the Judge's findings of fact set out in paragraphs 22-25, and 27-29 of the decision, it is in my judgement clear that they would all have been made, whether or not the Judge had the benefit at the hearing of the letter of 20 September 2015 from Md Azim Uddin. They did not relate to, and they were entirely independent of, the Appellant's claim that charges/complaints were made against him to the police in Bangladesh in 2001 and 2009. These findings of fact related to;
a) the false information the Appellant had given immigration officers on 16 October 2014,
b) his failure to intimate any claim to protection prior to service of the bundle of documents on 4 June 2015,
c) his inconsistent oral evidence about his experiences in Bangladesh,
d) the weight that could be attached to his claim to have been a member of a regional committee of the BNP in the UK during 2011, and,
e) the weight that could be attached to his failure to claim protection until the date that he did.
In my judgement the Judge would inevitably have reached the same conclusion about the reliability of the Appellant as a witness of fact, and his propensity to lie as and when he perceived an advantage in doing so, whether or not he had the benefit of the letter of 20 September 2015 from Md Azim Uddin.
32. The Judge's approach to the weight that could be attached to the documents produced by the Appellant as corroboration of his account was entirely consistent with the guidance to be found in Tanveer Ahmed v SSHD [2002] Imm AR 318. I accept as Ouseley J did in CJ (on the application of R) v Cardiff County Council [2011] EWHC 23, the importance of the approach referred to therein. Documentary evidence along with its provenance needs to be weighed by the Tribunal in the light of all the evidence in the case. Documentary evidence does not carry with it a presumption of authenticity, which specific evidence must disprove, and failing which its content must be accepted. Nor does the oral evidence from a witness called in support of an appeal carry with it such a presumption. It is not enough for an Appellant to argue that the Respondent has not sought to adduce specific evidence to prove that a document is a forgery, or that her evidence is untrue. What is required of the Tribunal is an appraisal of the weight that can be given to the different elements of the evidence relied upon, in the light of its content, provenance, timing, the background evidence and in the light of all the other evidence in the case.
33. That is also precisely the approach that the Judge adopted with a document that was said to be a full list of the members of the regional committee of the BNP for Darlington and Teesside in 2011. He concluded, for the reasons that he gave, and about which no criticism is raised, that the Appellant's name had been added to the end of this document at some unknown date by an unknown person.
34. It follows in my judgement that there is no realistic prospect of the Tribunal reaching a different conclusion upon the weight that could be attached to the documents that were relied upon by the Appellant as corroboration of his claim that complaints to the police were made against him in 2001 and 2009 as a result of his political activities in Bangladesh. The Tribunal would be bound to place significant weight upon the content of the Field Liaison Officer's report of 25 August 2015, and would be bound to reach exactly the same conclusions about the Appellant's propensity to lie as and when it suited him to do so.

Conclusion
35. I am not satisfied that the Appellant has made out his complaint that the Judge failed to apply the dominant test of fairness when considering the renewed application for an adjournment on 2 September 2015.
36. Even if the Judge had erred by failing to do so, it is plain in my judgement, that such an error was not material. Despite the time that has now elapsed the Appellant has singularly failed to produce any cogent reliable evidence that casts any significant doubt upon the accuracy of the content of the Field Liaison Officer's report of 25 August 2015. Nor has he produced any evidence that could be assessed as reliable, and as casting any doubt upon the information that was given to the Field Liaison Officer on 25 August 2015 by the police officer in charge of the Kotowali Police Station.
37. There is therefore no error of law that requires the decision to be set aside and remade.

DECISION
The decision of the First Tier Tribunal which was promulgated on 18 September 2015 contains no error of law in the decision to dismiss the Appellant's appeal which requires that decision to be set aside and remade, and it is accordingly confirmed.

Signed
Deputy Upper Tribunal Judge JM Holmes
Dated 23 June 2016

Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until the Tribunal directs otherwise the Appellant is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify them. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.
Signed
Deputy Upper Tribunal Judge JM Holmes
Dated 23 June 2016