Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02002/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
on 6 October 2016
on 11 October 2016

Before

UPPER TRIBUNAL JUDGE HANSON

Between

M B Z
(Anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss K Tobin instructed by City Legal Partnership
For the Respondent: Mr I Richards Senior Home Office Presenting Officer.

DECISION AND REASONS - ERROR OF LAW

1. This is an appeal against a decision of First-tier Tribunal Judge Fowell promulgated on the 25 April 2016, following a hearing at Newport on the 12 April 2016, in which the appellants appeal was dismissed on all grounds.

Background

2. The appellant is a national of Bangladesh who was born on 16 April 1971. The appellants evidence given to the First-tier Tribunal is set out at [14] to [16] of the decision under challenge.
3. The Judge, having considered the material, concluded at [32] that "Overall I accept the respondent's view that these maters have been concocted to support a bogus claim, and no reliance can be placed upon them. Accordingly, I do not accept that the appellant is at risk of persecution, or to be in need of humanitarian protection, even to the lower standard".
4. First-tier Tribunal Judge Grant-Hutchison granted permission to appeal in the following terms:

"It is arguable that the Judge has misdirected himself by making a finding on an answer given by the Appellant during his screening interview in relation to one of the main reasons for his claim and to place weight on it to demonstrate the lack of the Appellant's credibility when in fact the Appellant did mention it. This may have made a material difference to the outcome or the fairness of proceedings such as how the Judge considered the objective evidence which show that the high level of violence is not limited to senior members of the BNP, the way in which documents such as newspaper articles and medical evidence may have been considered and the lack of weight given to letters from the BNP Party in the UK and Bangladesh".

Error of law

5. The first element the Judge was required to consider was the credibility of the appellants claim to be a member of the Bangladesh Nationalist Party, often abbreviated to BNP, which is one of the two major contemporary political parties of Bangladesh. The Judge started his consideration of the credibility of the account by reference to the country information provided by the appellant.
6. At [21-24 and 25] the Judge makes reference to a number of such reports. It is not disputed by the Judge that there is a high level of political violence in Bangladesh and widespread harassment of the opposition but it has been found that this is mainly confined to limiting the activities of senior BNP members, with some arrests of BNP figures following outbreaks of violence [25].
7. At [24] it has been found:

"There are further reports to the same effect. The overall picture however is not as presented by the appellant. Firstly, the position has become more polarised and more violent since the 2014 election, with the greater majority of deaths and injuries occurring in the course of political protests. Although there are clearly human rights abuses, and a number of opposition supporters are seized by police or RAB each year, there is no suggestion in these reports that political opponents and their family members are routinely tracked down and killed. On the appellant's account, he comes from a political family and was an active member of the party's youth wing, between 10 and 15 years ago. He does not point to any particular political event or enemy to explain this apparent vendetta against him, yet the authorities are still trying to trace him years later, and do not baulk at attacking and killing members of his family. There is no suggestion that his brother, sister, brother in law or daughter were politically active in any way, just that they were related to him. This degree of enmity towards a long-removed political opponent is on an altogether different scale to the crack-downs on current and active opponents in the country, and the difference is emphasised by the fact that the abduction of a single BNP spokesman (who was not apparently harmed) is worthy of mention in an annual Human Rights Watch report. Had there been widespread and even fatal attacks on BNP supporters, let alone their family members, the political and human rights situation in Bangladesh would be of an altogether different kind. My starting point therefore is that the account presented by the appellant is materially different from the available background information."

8. The grounds assert the Judge is incorrect in the assessment of the background evidence. The claim is based upon political violence is Bangladesh and it is said the appellant's account of such violence is in accordance with the background evidence. Specific reference is made to the respondents Country Information and Guidance: Bangladesh opposition to the government, February 2015, in which it is stated:

1.4 Policy Summary

Membership or perceived support of groups opposed to the current government does not of itself give rise to a well-founded fear of persecution in Bangladesh, but may do so depending on the individual circumstances of the appellant.

High levels of politically motivated violence are perpetrated by the security forces and both opposition and government supporters in Bangladesh. Actual and perceived opposition political activists, members and supporters may experience violence, harassment, arbitrary arrests, detention, enforced disappearances, extra-judicial killings, torture, destruction of property and forced displacement.

9. Ms Tobin also made reference in her oral submissions to a report written by Amnesty International 2015/16 in which reference is made to hundreds of opposition supporters being detained for various periods, at times on politically motivates grounds, which it was submitted showed that detention and release is not limited to just senior members of the party. This material has been considered but must be placed in context as the section of the report headed 'Background' refers to an anti-government campaign by the BNP between January and March turning violent as hundreds of buses and other vehicles were attacked by demonstrators using petrol bombs. Senior members of the BNP were arrested and charged with arson and hundreds of opposition members were detained for days or months before being released some of whom were charged with arson. It is not unreasonable to expect arrests by the authorities following acts of criminality even if they have a political motive.
10. In relation to the respondents Country Information and Guidance, February 2015, paragraph 1.3.6 refers to harassment, arbitrary arrests, detention, enforced disappearance and other examples of ill-treatment against activists as noted by the Judge. Miss Tobin also referred to other sections of the report which refer to going political violence. It is arguable, however, that the finding by the Judge that these reports do not support the appellants account is a finding reasonable open to him on the evidence. The Judge did not say there is no political violence in Bangladesh and, in fact, clearly sets out reference to examples of such violence. What the Judge appears to have been saying is that notwithstanding such examples and reports of violence the appellant's claim that the authorities track down political opponents with his limited profile and their family members routinely, and kill them, is not made out. The grounds refer to the general level of violence in Bangladesh, which was accepted, but fail to identify sufficient evidence to support the appellants claim he faces a real risk on return as a person politically active ten to fifteen years previously in the BNP youth wing or to provide support for his claim of such violence against family members. As such the assertion of legal error in the Judge staring his assessment of the credibility from an unsustainable position is not made out.
11. The Judge was arguably entitled to draw adverse inference from the fact the appellant entered the UK in November 2007 yet did not claim asylum until he was arrested in 2011 [26].
12. The Judge also noted that when the appellant finally claimed asylum the basis of the claim is said to be as follows:

"You came to the United Kingdom because you had a very big loan of 58/62 thousand pounds. You were a businessman and you and your friend took out a very big loan with high interest. You then lost your business and "?I come here with hope that maybe I would have better hope and means to pay back the loan. All my family are in a risky situation cause the loan sharks are threatening me and my family?." You cannot return to Bangladesh because of the loan and the loan sharks.. also three of your friends have been murdered by the government.

13. Ms Tobin correctly submitted that notwithstanding reliance on a basis of claim that was not pursued and replaced by the claim to be at risk on the basis of political violence, the judge was required to consider the fact the situation could have changed in the interim.
14. The appellant claims he has evidence of a real risk on the basis claimed by way of evidence of attacks upon his family. The Judge deals with this element of the case at [29-31] in the following terms:

29. I note too that none of the attacks against family members which have been
described in evidence had occurred at the time of the screening interview, which is itself an unusual feature. If the appellant was being pursued by elements within the Awami League one would expect the attacks and efforts to locate him to have come after his departure rather than to have started 5 years later. The fact is more consistent with the respondent's explanation, that he concocted his account of these attacks after absconding in 2011.

30. The evidence of these individual attacks is also weak. As to his daughter, the CT scan report records that she had fallen from a height. The account given by his sister makes no mention of being injured herself, although there is a translation of a news item at page 24 which does say that she was injured. Nevertheless, it is unusual that she does not mentioned the fact. Her own affidavit says that he was hit on the head and this accords with the death certificate, but the news report says that her husband was stabbed.

31. The deposition statement provided by the appellant' brother about the attack he suffered sets out a lurid account of being attacked and robbed by a group of men. They were lying in wait for him while he went home from Dr Mehedi's house on his motorbike, and they and Dr Mehedi pursued him before beating and stabbing him. But there is no mention in his account of any involvement with BNP, either by the author or the appellant. His short statement at page 18 by contrast makes no mention of the circumstances of the attack but says this was the same group who attacked his sister, and that he was attacked by cleaver and dagger because he would not give them his brother's address. These two accounts have little in common and there is no medical evidence of his injuries or treatment.

15. It is claimed in the grounds that there has been a procedural failure in that none of the discrepancies were put to the appellant. Proceedings in the First-tier Tribunal are adversarial by nature. The burden of proving entitlement falls upon the person so alleging which in this case is the appellant. The discrepancies arise between written evidence available to the parties before the hearing. The appellant was represented by experienced Counsel at the hearing. It is also known in this jurisdiction, where written judgments are the norm, that a Judge will hear the evidence and thereafter retire to consider the issues and produce a written judgment. It is possible in some cases that an issue may arise that requires a further hearing but this is rare. The fact an issue is considered relevant by the judge that may not have been spotted or dealt with by the appellant in his evidence does not amount to arguable legal error if referred to in the decision. The Judge is entitled to think that the appellant will have provided all the evidence he is seeking to rely upon.
16. The reference to the lack of medical evidence of the appellants brothers injuries is not a rejection of this element of the case on the basis that without corroboration the account will not be accepted, as asserted in paragraph 7 of the grounds, but a statement of the fact that no medical evidence has been provided. The Judge sets out a number of reasons why the claim the injuries suffered by the family as a result of the appellants political activities are not believed.
17. The Judge is also challenged in relation to his treatment of the letter from the BNP relating to the appellants alleged membership of this group. It has not been shown the Judge failed to consider this element of the evidence. The Judge refers to letters provided in the bundle at [13(f)].
18. It has not been shown the Judge failed to consider all the written evidence. These letters refer to alleged membership and activities for the BNP in the UK and the appellant's membership of the youth party in Bangladesh from 2001. The Judge's treatment of the evidence from the BNP is summarised at [32] as follows:

32 Nor am I persuaded of the appellants political involvement with the BNP. The photographs he has produced show him merely in proximity with certain figures, and is more likely to be self-serving evidence. No one from the BNP in the UK attended to support his case..."

19. From this it can be inferred that the Judge placed little weight upon the evidence of membership and/or sur place activities which is a finding within the range of reasonable findings open to the Judge on the evidence.
20. In light of the Judge considering the evidence with the required degree of anxious scrutiny and having given adequate reasons for the findings made, the weight to be given to that evidence is a matter for the Judge. It has not been shown that the adverse credibility findings in relation to the factual matrix relied upon or membership of the BNP were not within the range of those reasonably open to the Judge. On that basis the appeal must fail for the claim to be at risk for the reasons stated was not found to have been made out.
21. No arguable legal error material to the decision to dismiss the appeal has been made out. The decision shall stand.

Decision

22. There is no material error of law in the First-tier Tribunal Judge's decision. The determination shall stand.

Anonymity.

23. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 11 October 2016