Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01743/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 1 February 2017
On 2 February 2017

Before

UPPER TRIBUNAL JUDGE KEKI?

Between

MD MOSHIUR ROHMAN CHOWDHURY
(anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Reid of Counsel, instructed by Hunter Stone Law
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant challenges the determination of First-tier Tribunal Judge Callow dismissing his appeal for protection. He is a Bangladeshi national born on 18 January 1980 who arrived here as a student in 2008 and whose last period of leave expired on 24 October 2014, having been curtailed. After the refusal of a subsequent application for leave to remain outside the rules, he made an asylum application. His claim is that he has two brothers in Bangladesh who are members of the Jamaat-i-Islami party and in respect of whom separate arrest warrants were issued on 14 and 31 July 2016. He maintains that he would be at risk on return because of his interest of the authorities in his brothers. He also has a brother here and one in the US.

2. The judge found that the appellant was not a credible witness, that his delayed asylum claim undermined his claim to be in need to international protection and that he was not involved in politics either here or in Bangladesh, since 2008. He found that there was no evidence from either brother regarding any interest the authorities may have in the appellant and that such evidence could easily have been obtained from them. He, therefore, concluded that their political involvement would not impact on the appellant and that the authorities would have no interest in him.

3. The appellant challenged the decision, essentially arguing that inadequate reasons were given for the judge's conclusions and that consideration had not been given to the 'objective' material. Permission was granted by First-tier Tribunal Judge Osborne on 14 November 2016 and the matter now comes before me.

The Hearing

4. At the hearing before me on 1 February 2017, I heard submissions from the parties. The appellant was in attendance.

5. Ms Reid submitted that the issue was whether the judge had given adequate reasons for his risk assessment. She argued that whilst the judge had accepted that the appellant's brothers were members of Jamaat-i-Islami, he gave no reasons to support his conclusion that this would not impact upon the appellant. She referred to page 129 of the appellant's bundle of country material as confirmation that the authorities threaten the families of political activists. The respondent was wrong to state in her Rule 24 response that there was no evidence of the interest in the brothers as copies of two arrest warrants had been submitted. The judge did not consider these. The appeal should be allowed.

6. In response, Mr Melvin submitted that the judge had not been directed to the page now referred to and it was not for him to have to trawl through a 300 plus page bundle to find a section of a report that may support the appellant's claim. He questioned the weight that could be attached to the report in any event. He submitted that the judge was aware of the warrants (at paragraph 4). The brothers were members of a main stream party and neither had supplied any evidence to support the appellant's claim. The judge's findings were adequate. The determination should be upheld.

7. Ms Reid replied to state that the challenge was not just on the matter of a failure to consider the country evidence but also because the judge had wrongly stated that there was no evidence of interest in the brothers when the warrants for their arrests had been submitted. She maintained that the findings were limited and there needed to be substantial fact finding which would require the matter to be remitted to the First-tier Tribunal for re-hearing.

8. At the conclusion of the hearing I reserved my determination which I now give.

Findings and conclusions

9. The judge's determination is succinct but that does not necessarily mean it is inadequate. No issue was taken before me with his findings on the appellant's own lack of political profile so the only issue is whether his finding that the political membership of his two brothers in Bangladesh would not cause an adverse interest in him was properly reasoned.

10. As already stated, one of the appellant's brothers in in the UK. There is no evidence that he has any form of leave and according to the appellant's own evidence at interview, his brother has been going through the appeals process following the refusal of his application based on long residence grounds. He maintains his brother has been here over ten years, even before he himself arrived here (at Q. 6 and 141). Another brother is in the US. No details about him are provided. The appellant's father passed away when he was a year old. The family he has remaining in Bangladesh are his mother, two further brothers in respect of whom the warrants were issued, their wives and children, three sisters and an uncle and his family. All, except possibly the uncle and his family, live together but the appellant maintains that his brothers hide at night to avoid detection by the authorities (Q.30). At his interview the appellant based his claim on being an active member of the Jamaat-i-Islam (and previously of the student wing - the Shabir Party) along with his brothers. He agreed their involvement was at a low level (Q.113). He stated that he was advised in 2013 not to return (Q.36). Both warrants were issued after the appellant's interview but shortly prior to the hearing.

11. This was the context in which the judge had to assess the risk to the appellant.

12. The judge heard evidence from the appellant and set out his case at length (at paragraphs 4-6). He noted the submissions for the appellant during the course of which the only country information that was relied on was the respondent's own Country Information and Guidance for February 2015. There was no reference by Counsel to page 129 of the bundle, which was subsequently heavily relied on in the grounds. Mr Melvin is right to say that if this was an important part of the appellant's case, it should have been brought to the judge's attention either by way of a schedule of essential reading or in submissions. The reference at page 129 is an extract from a report by Odhikar of June 2016. There is no information on their credentials of impartiality. I was not referred to any particular paragraph but presume the reliance is on a sentence at paragraph 42 which states that the government uses its law enforcement agencies against its political opponents and arrests and harasses the leaders and activists, "even family members". This allegation is unsourced. There is no reference to any supporting material. If the arrest of the wife of the leader of the Dhaka Metropolitan Unit, mentioned in the preceding paragraph, is the basis for this allegation, I would note that there is no description of what the DMU is and also note that the person sought occupied a high rank within it. I fail to see how that analogy could impact upon the risk to the appellant, which no doubt is why this was not brought to the judge's attention.

13. The judge makes it plain that he has considered all the evidence in the round (at paragraph 14). He was not required to itemise this material. Having considered that evidence and having given it anxious scrutiny (ibid), the judge proceeded to make his findings.

14. The appellant was not found to be credible. His late asylum application was found to undermine his credibility and he was found to have been inactive in politics since 2008. It is right that the judge did accept that the two brothers in Bangladesh are politically active. The criticism focuses on what he then found: "?this membership and their activity is of no concern or impact in so far as the appellant is concerned?" It is maintained no reasons are provided for this conclusion. That is incorrect. The judge found that the appellant had no political profile. He noted that none of the brothers had provided any evidence suggesting that the appellant would be at risk on account of their activities. Had there been attempts to locate him or to had enquiries made about him, it is reasonable to expect the appellant would have provided statements from his brother(s) to that effect. Further, had there been interest in the appellant's brothers in the UK and the US, it is reasonable to expect the appellant would have adduced evidence to support that. The judge was entitled to note such evidence would have been easily obtained. In its absence and in the absence of any reference to, or reliance on, country material which would support the appellant's claim, the judge was entitled to find as he did.

15. I did not understand Ms Reid's criticism of the judge with respect to his alleged failure to appreciate that the brothers had provided evidence of the interest of the authorities in them in the form of arrest warrants. I cannot see anything in that paragraph 17 to suggest that this is what the judge said. What he said was that there was no evidence from the brothers of any interest on the part of the authorities in the appellant. That is a wholly different matter. The judge was not required to make any specific findings on the warrants. He was not assessing the risk to the appellant's brothers but to the appellant and in the absence of any evidence to show that family members of low level opposition party members (as the appellant himself accepted his brothers were) are persecuted by the authorities, the issue of warrants for the brothers do not impact upon the appellant. It is of course of note that the brothers whom it is claimed are directly at risk remain in Bangladesh with other members of the family and it is not the appellant's evidence that any other family members have been persecuted by the government. The judge's conclusion that the appellant was not at risk for the grounds claimed is wholly sustainable. Whilst I accept that his findings could have been somewhat more detailed, they are sufficient to show why the appeal was dismissed.

16. Decision

17. The decision does not contain any error of law and is upheld.

18. The appeal is dismissed.

Signed

Upper Tribunal Judge

Date: 1 February 2017