Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01005/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 18 May 2016
On 01 August 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

MR MD BABLU AHMED TOPADAR
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Z Khan, Universal Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS

1) This is an appeal against a decision by Judge of the First-tier Tribunal A A Wilson dismissing an appeal on asylum and human rights grounds.

2) The appellant was born in 1986 and is a national of Bangladesh. He entered the UK in 2010 as a student. He claimed asylum in December 2015. He claimed that he was a member of the BNP from March 2004 and was secretary of his local ward of the student wing before becoming the local union secretary in February 2008. From 2008 he had increasing difficulties with a particular person in the Awami League. He was attacked by this person in June 2008. At a rally shortly afterwards he was beaten up by the police. After the election in 2008 the Awami League activist who had targeted him before started looking for him again and he had to go into hiding. A false claim was lodged against him with the police. Further allegations were made by a different individual in May or June 2009. An arrest warrant was issued in October 2009 and he was then advised to leave the country.

3) At the hearing before the First-tier Tribunal there was no appearance by or on behalf of the appellant. Shortly before the hearing the appellant's then solicitors wrote to the Tribunal stating that they were withdrawing from acting and the appellant wanted the appeal to be decided on the basis of the documentary evidence. The judge recorded at paragraph 9 of the decision his reasons for proceeding with the hearing.

4) The Judge of the First-tier Tribunal considered the documents and the appellant's immigration history. The judge concluded that the documents relied upon by the appellant carried no weight at all. The appellant's asylum claim was therefore dismissed.

5) The appellant claimed that he was facing a five year prison sentence in Bangladesh. The judge concluded that even if this were so, there would be no violation of Article 3 on the basis either that the appellant had been sentenced in absence to a five year prison sentence or that prison conditions in Bangladesh would violate Article 3. In relation to prison conditions the judge relied upon the case of SH (prison conditions) Bangladesh CG [2008] UKAIT 0076.

6) The judge also considered the appellant's private life. The appellant had no family life in the UK. Although he had been in the UK since January 2010 he had not lost his ability to relocate and re-integrate within Bangladesh. The Secretary of State's decision was proportionate.

7) Permission to appeal was sought on several grounds. It was said that the judge had not given proper consideration to the issue of credibility. The appellant's credibility had not been questioned and the judge did not make adverse findings on credibility. The judge failed to take into account the appellant's explanation for why no further letters could be produced in support of his claim. The judge had also failed to give adequate regard to the appellant's current life in the UK and the undesirable effect it would have if he could not continue it.

8) In the grant of permission to appeal it was considered arguable that no clear findings were made on credibility or on the documents submitted. The decision lacked structure and there were no clear findings on the reliability of the documents. It was arguable that instead of both parties engaging with the evidence, reliance had been placed on the appellant's submission of false documents with a previous application and his delay in claiming asylum.

9) A rule 21 notice dated 28 April 2016 was lodged on behalf of the respondent. This states that credibility was in issue. The Judge of the First-tier Tribunal noted the correct standard of proof and considered that the appellant had lodged a false document in a previous application. This and the issue of delay in claiming asylum were factors in the appeal. The appellant compounded this by choosing not to attending his hearing and offering his assistance to the Tribunal. The judge directed himself appropriately.

Submissions

10) At the hearing before me Mr Khan, for the appellant, submitted that there were no clear findings made by the Judge of the First-tier Tribunal on the reliability of the documents relied upon by the appellant. The judge did not engage with this evidence. Instead he relied upon the appellant's previous use of false documents and his delay in claiming asylum. This was an error of law.

11) Mr Khan continued that nowhere did the judge refer to other material aspects of the evidence, chiefly the appellant's witness statement, relating to his political activities and the risk on return. The judge did not assess the witness statement in any detail and made no assessment of the documents relied upon. Mr Khan submitted that the judge made a damaging finding on credibility on the basis that the appellant had submitted false documents in a previous application. The appellant had had no opportunity to challenge this contention.

12) It was pointed out to Mr Khan that reference was made to a judicial review brought to challenge the Secretary of State's decision in relation to the previous application where it was alleged that the appellant had sought to rely upon false documents. Permission to apply for judicial review had been refused.

13) Mr Khan responded that the refusal was on the basis that the appellant had an alternative remedy in the form of an out of country appeal. He pointed out that the appellant had made an Article 3 claim in November 2014 but submitted that this had not been decided by the respondent. There was no evidence that the appellant had relied upon false documents. The judge should have given reasons for his findings. The judge should have considered whether it was fair to admit the evidence in relation to false documentation. The reasons given by the judge in paragraph 20 were not adequate. Reliance was placed on the decision of the Upper Tribunal in MK (duty to give reasons) Pakistan [2013] UKUT 00641. The appellant chose not to attend the hearing before the First-tier Tribunal but this did not relieve the judge of the duty to give reasons.

14) Mr Khan further submitted that the judge should have found that the respondent's decision was not in accordance with the law because it was taken in an unfair manner. He referred to paragraph 6 of the judge's decision, in which it was recorded that the Secretary of State had set a deadline of 22 February 2016 for the appellant to submit further representations but the Home Office notice of decision was dated 25 January 2016. The judge commented that on the face of it the decision by the Secretary of State was premature.

15) The question was raised as to what representations the appellant had been prevented from making to the Secretary of State. Mr Khan pointed out that all the documents on which the appellant relied were in a bundle dated 9 March 2016. It was noted that this bundle was lodged prior to the hearing before the First-tier Tribunal on 15 March 2016. Mr Khan submitted that the judge had not properly considered these documents, which should have been accepted or rejected. The decision of the First-tier Tribunal should be set aside and a further hearing held.

16) For the appellant Mr Wilding submitted that the appeal was completely without merit. The appellant did not attend the hearing before the First-tier Tribunal. There was nothing unfair about this hearing and this was not a point which was raised in the application for permission to appeal. The Secretary of State had provided evidence of historical fraud. It was maintained on behalf of the appellant that this was unfair but this was not so in an asylum appeal. The Judge of the First-tier Tribunal did not say none of the documents were reliable because of the appellant's historical use of fake documents. The outcome of the appeal in the First-tier Tribunal did not depend upon the historical use of false documents. Evidence was produced of an ETS statement and ETS specification. Although there was subsequent case law on ETS, no evidence in relation to English language testing was produced by the appellant.

17) Mr Wilding submitted that from paragraph 16 of the decision onwards the judge had properly considered the claim and rejected it. At paragraph 16 and 17 the judge had looked at the general situation in Bangladesh. At paragraph 18 he had considered the appellant's screening interview. At paragraph 19 he considered the delay by the appellant in claiming asylum. At paragraph 20 the judge referred to the previous use of false documents by the appellant but even putting this aside, the judge gave reasons at paragraphs 21 and 22 for not accepting the appellant's evidence. The judge pointed out that at the time he raised his application for judicial review the appellant had access to legal advice but chose not to claim asylum at that point. He claimed to have had legal advice at the time he left Bangladesh but the judge pointed out there was no verifiable information from his lawyers in Bangladesh at that time. The appellant would need to show the judge's findings were perverse but the judge could only assess the evidence which was before him and the appellant had chosen not to attend the hearing.

18) Mr Khan explained at his point that the appellant did not have the means to finance legal representation and he was scared to attend the hearing without a lawyer.

19) Mr Wilding resumed by saying that the grounds in the application did not show any error of law. The question of whether the Secretary of State's decision was unfair was not in the grounds of the application. The only question arising from the appellant's asylum claim made in December 2015 was whether his removal would lead to a breach of the Refugee Convention. The question of whether the Secretary of State's decision was in accordance with the law was not within the jurisdiction of the First-tier Tribunal. There was anyway the question of whether there was any prejudice arising from the restriction of the appellant's opportunity to lodge further documents. There was an appeal to the First-tier Tribunal. This was not certified. The appellant could produce any documents on which he sought to rely and had done so.

20) Mr Khan in response referred to paragraph 18 of the decision. The judge observed that at paragraph 6.2 of the screening interview the appellant had made it clear that there was a politically motivated case against him. The appellant correctly stated at his screening interview that he had never committed any offence but the case raised against him was because of his involvement in politics. All the charges were politically motivated. The judge said at paragraph 22 that he would give no weight to the documents but he did not consider the evidence as a whole, including the documents from the police. The judge did not explain why the documents were not reliable, in accordance with Tanveer Ahmed [2002] INLR 345. The judge's decision was vitiated by an error of law and should be set aside for a further hearing to be held before a differently constituted hearing.

21) On the issue of possible unfairness, Mr Khan accepted that the appellant did not have a case - he had had the opportunity to produce documents before the First-tier Tribunal.

Discussion

22) The essential issues in this appeal are whether the Judge of the First-tier Tribunal properly assessed the evidence and made credibility findings based on the evidence and supported by adequate and valid reasons. To begin with it is worth noting that at paragraph 15 of the decision the judge asked himself what weight he should give to "the copious documents" relied upon by the appellant which appeared to the judge to be in "a clear, logical and legal framework" as against the appellant having previously lodged false documents to obtain leave to remain and on his own admission having arrived in the UK when the first set of proceedings against him in Bangladesh had already commenced.

23) The judge then observed, at paragraph 16, that in answering this question he did not have the benefit of the appellant appearing before him and tendering himself for cross-examination. This was something the appellant himself had deprived himself of the opportunity of doing. This was not, however, evidence against the appellant.

24) The judge then observed at paragraph 17 that he had already made reference to the situation in Bangladesh and the degree of political instability there from 2008 to 2010. This political instability did not of itself mean that someone who was involved in that would necessary be at risk on return now. They could be at risk due to the fact they had been convicted of criminal offences. It was possible for the appellant show that his particular conviction was generated through political motivation and that he had been deprived of a fair trial. The judge observed that there was no statement either from the advocate in Bangladesh that the appellant had instructed prior to his departure or from the advocate who had represented him in court at his trial in absence.

25) The judge then referred at paragraph 18 to the appellant's screening interview. At this the appellant said in his own country he had never been accused of or committed an offence for which he had been or could have been convicted. He also stated that he had never been accused of being involved with any political organisation or religious organisation or any armed or violent organisation. This was despite the fact that the second set of proceedings brought against the appellant in Bangladesh supposedly included firearms offences. The judge then noted that at 6.2 of the screening interview the appellant stated that he was involved in politics and there was a case against him.

26) At paragraph 19 the judge noted that the appellant was ill at the start of his subsequent asylum interview but the interview proceeded with appropriate breaks. The judge observed that according to the appellant he left Bangladesh knowing the risk that he claimed to face but he failed to claim asylum. Instead he made an application for further leave to remain and, when that was refused, he made a human rights application, again without claiming asylum. This led to a very considerable delay.

27) The judge observed briefly at paragraph 20 that the appellant had used false documentation, namely a false English language test certificate, to obtain limited leave to remain in August 2014. The judge asked himself, at paragraph 21, whether this was simply the act of a desperate person not able to obtain appropriate legal advice. The judge noted, however, that an application for judicial review was lodged to challenge the respondent's decision arising from this. This meant the appellant had access to appropriate legal advice but chose not to claim asylum. The judge was satisfied that the appellant had used false documents.

28) The judge then concluded that in the absence of further verifiable information from Bangladesh, in particular from the appellant's lawyer at the time he left, when he claimed to have received advice, or from the lawyer appointed to represent him at the hearing, the judge was not satisfied that any weight could be attached to the documents on which the appellant relied.

29) To the extent that it has been argued that the judge did not reach clear conclusions on the appellant's credibility and on the evidence, I do not agree. By implication, if not expressly, the judge found the evidence on which the asylum claim was based to be lacking in credibility. The judge found the documentary evidence on which the appellant relied in support of his claim to be wholly unreliable. Mr Khan submitted before me that the judge did not have regard to the appellant's witness statement but the judge noted at paragraph 3 that the details of the appellant's claim were set out clearly in his statement and at his interview. The judge did not disregard the witness statement - he did not believe it. The judge did not go through the documentary evidence item by item but he was not required to do so. The decision clearly shows that he was aware of the content of the documentary evidence. At paragraph 14 the judge observes that the documents lodged showed two separate court proceedings. In respect of the first set the appellant was convicted in absence to imprisonment for five years, having been represented by an advocate appointed by the state.

30) Among the reasons given by the judge for not accepting the appellant's evidence were the discrepancies identified in the appellant's screening interview, as set out above. At paragraph 5.3 of this interview the appellant not only denied ever having committed an offence, which would be consistent with his account, but denied ever having been accused of an offence, which was not consistent. He further denied, at 5.5, ever having been involved with or accused of being involved with any of a number of groups, including an armed or violent organisation, group or party. Again the question was not just one of whether he had been involved but whether he had been accused of being involved. Then at 6.2 the appellant refers to having been involved in politics and having a case brought against him. He relied on documentary evidence showing that he was accused of involvement in firearms offences. These were discrepancies on which the judge was entitled to rely.

31) One of the main points on which the judge found against the appellant was in relation to his delay in claiming asylum. The judge observed that the appellant left Bangladesh in 2010 when he already considered there was a risk to him, but failed to make any claim for asylum. Even when he made a human rights claim in July 2014 he did not claim asylum. As the judge observed, in the same year the appellant made an application for judicial review, showing that he had access to legal advice, but he still did not claim asylum. The judge was entitled to take the delay into account.

32) The judge was also entitled to rely on omissions from the appellant's documentary evidence. The judge noted that there was no evidence from the appellant's lawyers in Bangladesh, either those he claimed to have consulted before he left or the lawyer appointed to represent him in the first set of proceedings when he was supposedly convicted in absence. Although Mr Khan submitted before me that the judge had disregarded the appellant's explanation of why he had not been able to produce further letters, Mr Khan did not refer me to where in the evidence this explanation was to be found and I have not seen it. I note, however, that at paragraph 46 of the witness statement the appellant said after he left Bangladesh he had received from his lawyer most of the documents on which he relied.

33) I turn next to the judge's treatment of the appellant's previous use of a false English language certificate. In this regard Mr Wilding referred me to the decision of the Upper Tribunal in SM and Qadir (ETS - evidence - burden of proof) [2016] UKUT 00229 and the earlier judicial review decision in Gazi IJR [2015] UKUT 00327.

34) I note that the Tribunal's conclusions in SM and Qadir were that in ETS cases, where it was alleged that there was reliance on a fraudulent test certificate, the Secretary of State's generic evidence, combined with her evidence particular to the appellant, sufficed to discharge the evidential burden of proving the certificate had been procured by dishonesty. However, given the multiple frailties from which this generic evidence was considered to suffer and, in the light of evidence adduced by the appellants, the Secretary of State had failed to discharge the legal burden of proving dishonesty on their part.

35) In the present appeal the Judge of the First-tier Tribunal had before him the evidence on which the Secretary of State had relied in finding that the application made in 2014 was made using a false certificate. There is a letter dated 5 October 2014 addressing the appellant by name, in which it is stated on behalf of the Secretary of State that an anomaly in the appellant's speaking test indicated the presence of a proxy test taker. This was supported by a witness statement from a senior case worker specific to the appellant, as well as the generic evidence to which reference was made in SM and Qadir. As Mr Wilding submitted before me, this was sufficient to discharge the burden of proof. No evidence was adduced by the appellant to refute the Secretary of State's evidence.

36) For the appellant, I understood Mr Khan to say that the appellant did not have an in-country right of appeal against the decision curtailing his leave because of the use of false documents. Nevertheless, the use of these false educational certificates was raised in the reasons for refusal letter against which the present appeal has been brought. It does not appear to have figured prominently in the respondent's reasoning for refusing the asylum claim but the judge was nevertheless entitled to have regard to it. The appellant had an opportunity in relation to the present appeal to question whether he had in fact relied upon a false educational certificate but he did not do so. Although the judge rightly drew no adverse inference from the appellant's decision not to attend the hearing, the appellant had the benefit of legal advice in preparation for the hearing and had the opportunity to address this point.

37) Mr Khan submitted that the Judge of the First-tier Tribunal did not have regard to the evidence in the round, as required by Tanveer Ahmed. It seems to me, however, from the exposition of the judge's reasoning set out above, that the judge fully considered the documentary evidence in the round and was entitled to reach the conclusions which he reached for the reasons which he stated. Mr Khan sought to rely on the decision of the Upper Tribunal in MK regarding the duty to give reasons. This states no more than that if a document is to be worth no weight whatsoever, it is necessary to say so in the decision and for such a finding to be supported by reasons. In this appeal the judge found the documentary evidence to be of no weight and gave adequate reasons for his finding. There was no breach of the duty to give reasons.

38) In conclusion, the grounds on which the application for permission to appeal has been brought and argued before me did not show any error of law in the judge's decision. For this reason the decision will be upheld.

Conclusions

39) The making of a decision did not involve the making of an error on a point of law.

40) I do not set aside the decision.

Anonymity

41) The Judge of the First-tier Tribunal did not make an order for anonymity. I have not been asked to make such an order and I see no reason of substance for so doing.

Signed Date

Upper Tribunal Judge Deans