Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02020/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30th January 2017
On 10th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

SS
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr. J Plowright, Counsel, instructed by Malik & Malik Solicitors
For the Respondent: Mr. L Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. The First-tier Tribunal made an anonymity order. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant. This direction applies to, amongst others, all paties. Any failure to comply with this direction could give rise to contempt of court proceedings.
2. This is an appeal against the decision of First-tier Tribunal Judge Hussain promulgated on 21st November 2016.
3. The appellant is a national of Bangladesh. On 28th December 2010, she applied for leave to enter the UK as a Tier 4 (General) student. On 2nd January 2011, she was granted entry clearance as a student valid until 30th April 2014. She arrived in the United Kingdom on 17th January 2011. Her leave to enter was curtailed and on 12th June 2012, the appellant made an application for leave to remain. The application was refused on 7th January 2013 by the respondent but there was a successful appeal to the First-tier Tribunal against that decision. On 21st May 2013, the appellant was granted leave to remain until 23rd August 2015. Three days before her leave to remain expired, on 20th August 2015, the appellant made a claim for asylum. The claim for asylum was refused for the reasons set out in a decision dated 4th February 2016. That was the underlying decision that was the subject of the appeal before the First-tier Tribunal (“FtT”).
The decision of First-tier Tribunal Judge Hussain
4. The appellant’s immigration history is set out at paragraph [1] of the decision of the FtT Judge. At paragraphs [2] to [6] of his decision, the Judge sets out the appellant’s case taken from the summary set out in the respondent’s decision, and at paragraphs [7] to [18], the Judge sets out a summary of the respondent’s decision. At paragraphs [19] to [42], the Judge sets out the evidence of the appellant and her witnesses that was before him. The Judge heard oral evidence from the appellant and two of her sisters. A summary of the evidence given by HP is set out at paragraphs [19] to [21] and [36] to [37] of the decision. A summary of the evidence of SKM is to be found at paragraphs [22] to [23] and [38] to [42] of the decision. The Judge notes at paragraph [24] of his decision that the appellant’s husband did not attend to give evidence, but he had provided a written statement. The Judge then refers to the evidence of the appellant at paragraphs [27] to [35] of his decision. The findings and conclusions of the Judge are to be found at paragraphs [48] to [77] of the decision.
5. On any proper reading of the decision, the Judge did not find the appellant to be a credible witness. At paragraph [48] of the decision that is plainly apparent. The Judge states “For the reasons given below I found the appellant’s evidence thoroughly unreliable.”. At paragraphs [48] to [72] of his decision, the Judge sets out the reasons for so finding.
The grounds of appeal
6. The appellant advances three grounds of appeal. First, the Judge erred in completely ignoring the medical report of Dr. Ahmed Shoka that was in the appellant’s bundle. The appellant submits that the report is important and should properly have been considered by the Judge because it provides evidence of the abuse suffered by the appellant’s sister, HP, and that in turn supports, or at least can corroborate the claim that the appellant was also abused in a similar way by her father. Second, the FtT Judge reached his decision based upon a consideration of matters within his own knowledge that were not derived from the evidence before the Tribunal. The appellant submits that she was not afforded any opportunity to address those matters resulting in unfairness. Finally, the appellant submits that the Judge failed to adequately address the risk upon return that the appellant would face as someone who is no longer a Muslim, and has renounced her religion.
7. Permission to appeal was granted by FtT Judge Osborne on 16th December 2016. The matter comes before me to consider whether the decision of the FtT involved the making of a material error of law, and if so, to remake the decision.
8. Before me, Mr Plowright relied upon the grounds of appeal and the three grounds advanced therein. He accepts that the third ground stands and falls with the other two grounds. He accepts that if the Judge was entitled to find that the appellant’s account is entirely incredible, any failure to make a finding as to the risk upon return is immaterial.
9. As to the first ground of appeal, he submits that the Judge had before him, in the appellant’s first bundle prepared for the hearing on 26th August 2016, a statement from the appellant’s sister, HP, consenting to the disclosure of her medical records in support of the appellant’s appeal. There is within the bundle, at pages [10] – [15], the report of Dr Ahmed Shoka relating to HP who was admitted on 14th February 2016 and diagnosed with a “severe depressive episode with mood-congruent psychotic symptoms”. The report of Dr Shoka is a Psychiatric report prepared for a Mental Health Tribunal to be held on 4th March 2016. Mr Plowright submits that the report refers to the honour based abuse that the appellant and her sisters were subjected to. He submits that in looking at the content of the report, the Judge failed to appreciate that the report was not produced for the purposes of the appeal, but for a Mental Health Review Tribunal. Mr Plowright submits that the content of the report goes to the Judge’s assessment of credibility, and the Judge should have carefully considered the content of the report when assessing whether the account of the appellant as to her past experiences, is credible. He submits that the report is capable of supporting the account given by the appellant of the abuse that she and her sisters have been subjected to, over a number of years.
10. As to the second ground of appeal, Mr Plowright submits that the FtT Judge relies repeatedly in his decision, upon his own purported knowledge of Bangladesh and reaches conclusions based upon his own interpretation of the legislation and practices that are adopted in Bangladesh. At paragraph [62] of his decision, the Judge proceeds upon his own Muslim background, and his own knowledge of Islam when considering the appellant’s claim that her marriage would be considered invalid in Bangladesh, because the appellant married her husband without the consent of her father. At paragraph [59], the Judge appears to proceed upon his own understanding of the history of Bangladesh, and the events leading to it becoming an independent country. At paragraph [68], the Judge refers to his own knowledge as to whether the law in Bangladesh requires the consent of the wife, before a man can take another wife. Mr Plowright submits that the Judge reaches his conclusions based upon his own interpretation of matters, rather than the evidence before him. Mr Plowright submits that the appellant must be given a fair hearing, and an opportunity to respond to what the Judge believes to be the position, based upon his own knowledge. He submits that the appellant was given no such opportunity.
11. On behalf of the respondent, Mr Tarlow adopts the Rule 24 response filed by the respondent. He submits that the Judge properly referred to the Psychiatric Report of Dr Ahmed Shoka at paragraph [21] of his decision, when referring to the evidence of the appellant’s sister, HP. The Judge was therefore plainly aware of that evidence and its content when reaching his decision. Mr Tarlow submits that a proper and careful reading of the decision makes it clear that the Judge carefully considered the account advanced by the appellant, and the Judge rejected that account for several reasons, all of which he has carefully set out in a way that was open to him.
12. Mr Tarlow submits that the criticism made of the Judge referring to his own knowledge is misplaced. He submits that when read as a whole, at paragraph [59] of his decision, the Judge rejects the account advanced by the appellant because in the end, there was an absence of objective evidence to support the appellant’s claim that many people from Bangladesh have a deep-seated hatred of Pakistani people. Similarly, at paragraph [62], although the Judge refers to his own Muslim background and some knowledge of Islam, the conclusion reached by the Judge follows on from the words “My views aside..”. Again, when read as a whole, at paragraph [62] of his decision, the Judge reached his conclusion because of the lack of expert or objective evidence supporting the assertion being made by the appellant. Mr Tarlow accepts that paragraph [68] is not qualified in the same way, but he submits that in light the other adverse findings made by the Judge, that is immaterial. Mr Tarlow submits that the Judge reached findings and conclusions that were properly open to him on the evidence, and that there is no material error of law in the decision of the First-tier Tribunal.
Discussion
13. I have carefully read through the decision of the FtT Judge and the evidence that was before him. It is clear upon any careful reading of the decision that the Judge, having had an opportunity of hearing from the appellant and the witnesses called to give evidence, and having seen that evidence tested in cross-examination, found the evidence to be unreliable. The Judge made a number of adverse findings that go to the core of the appellant’s account.
14. It is now well established that what is required in a decision is that the reasons provided must give sufficient detail to show the parties and the appellate Tribunal, the principles upon which the lower tribunal has acted, and the reasons that led it to its decision, so that they are able to understand why it reached its decision. The reasons need not be elaborate, and need not deal with every argument presented. The Court of Appeal in R & ors (Iran) v SSHD [2005] EWCA Civ 982 held that a finding made by a Judge might only be set aside for error of law on the grounds of perversity, if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence.
15. I reject the claim that in reaching his decision the FtT Judge ignored, or failed to have proper regard to the psychiatric report of Dr. Ahmed Shoka. At paragraphs [19] and [20] of his decision, the Judge sets out an extract from the witness statement of the appellant’s sister, HP. Her evidence, as noted by the Judge, was that their upbringing was far worse than other children of their age. Her evidence was that they were mentally and physically abused on a regular basis, often beaten, starved and insulted as a method of control. The Judge notes HP’s evidence that to her parents, their honour was the most important thing. At paragraph [21] of the decision, the Judge refers to the Psychiatric report. He states:
“21. Although not in her statement, this witness also told her doctor who in a medical report at page 11 of one of the appellant’s bundle, re-stated that she was subjected to “severe sexual abuse from the age of 6 conducted by her father and friends. Recently she has also faced honour based abuse by her parents who are in Bangladesh and has threatened to send someone to take her back to Bangladesh to force her in an arranged marriage.”
16. I have carefully read the psychiatric report of Dr Ahmed Shoka that was before the FtT. That is a report prepared in respect of the appellant’s sister HP, for a Mental Health Review Tribunal on 4th March 2016. The introduction to the report states:
“(HP) was born in Dubai where she stayed till the age of eighteen years. She reports physical abuse from childhood that is experienced by all her siblings (beatings with belts, pipes, etc) and also disclosed severe sexual abuse from the age of six conducted by her father and friends. Recently she has also faced honor-based abuse by her parents, who are in Bangladesh, and has threatened to send someone to take her back to Bangladesh to force her into an arranged marriage.
…
(HP) maintains she hates to be around men and reports she has never had a boyfriend, adding she has no intention of getting married. The thought of physical relationship makes her feel sick.
…
(HP) reports that her poor mental health could be traced back to when she was still abroad (Bangladesh) living with all her family members. She maintained that all her siblings of the family of 5 girls suffer from one form of mental illness or another as they had bad childhood experiences (e.g. arranged marriage). (HP) says she can recall that her mother suffered severe mental illness but did not have the boldness to get medical help due to the stigma attached to such illness in their community, so she is living with it’. She said that her eldest sister who lives in Buckinghamshire suffers severe mental health problems her life is messed up”
17. Under the heading, “Last Consultant Review on 29th February 2016” the following is recorded:
“….She clarified that she had always been an “introvert” and had very few friends. She has no contact with her parents who are now in Bangladesh but did not want to talk about the issues between them. She admitted to having suicidal thoughts in the past and took several overdoses. She has self-harmed in the past by biting herself and still continues to do so, if stressed or worried. She no longer considers herself as being a Muslim and hence worried about the repercussions from the family.
….When she was asked about any mental illness in her family, she stated that both her mother and sister suffered from “exorcism.” She explained this further by saying that they had been possessed by spirits or “jinns.” At this point of time, she started hyperventilating and shaking and acknowledged that when she looked at the mirror she could see “scary things.” When she was asked whether she could be possessed as well, she nodded in agreement. She clarified this further by saying that she was possessed by the Devil; she feels like sacrificing herself to save people around her.”
18. The medical report relates to the appellant’s sister HP. The appellant’s sister gave the Consultant Psychiatrist her account. It was for the Judge to conclude whether, and to what extent, the account of the appellant’s sister set out in the medical report corroborated the account of the appellant.
19. I accept that the account given by the appellant’s sister is, on the face of it, capable of providing some support to the account given by the appellant. However, the fact that the two sisters maintain a similar account of the abuse that they were subjected to previously, is not to say that the Judge was bound to accept the appellant’s account as being credible in all respects. In reaching his decision as to the credibility of the account given by the appellant and her witnesses, in my judgment, it is clear that the Judge did have regard to the medical evidence. To see that the Judge carefully considered all the evidence before him, one only has to look at paragraph [52] of the decision. The Judge states:
“….the appellant attributed all of the monstrosity to which she was subject on her father, whereas her sister (HP), I presume got a little carried away and repeatedly referred to her “parents” in her statement as being her oppressors. In fact, in the medical report relating to her, she told the doctor that it was her parents rather than her father alone who was the perpetrator of all the ills that had been inflicted on her. In fact, she even claimed that hat her father as well as “friends” (without explaining whether they were her friends or her father’s friends) sexually abused her from the age of 6. That this is part of the story that has been manufactured is evidenced by the fact that neither the appellant nor her other sister referred to it. If there was any truth in it, then in my view they will they will not have hesitated to add this to the long list of complaints they made against the father.”
20. I also reject the claim that the Judge reached his decision by reference to matters within his own knowledge, that were not derived from the evidence before the Tribunal. The paragraphs of the decision that the appellant seeks to criticise must be read as a whole. I accept the submission of Mr Tarlow that at paragraph [59] of his decision, the Judge rejects the account advanced by the appellant because in the end, there was an absence of objective evidence to support the appellant’s claim. Similarly, in my judgement, a careful reading of paragraph [62] as a whole makes it clear that the conclusion reached by the Judge was because of the lack of expert or objective evidence supporting the assertion being made by the appellant.
21. In my judgment, the findings made by the Judge between paragraphs [48] and [73] were findings that were properly open to the Judge on the evidence before the FtT. The findings cannot be said to be perverse, irrational or findings that were not supported by the evidence. The appeal was dismissed after the Judge had carefully considered the facts and circumstances of the claim and all the evidence before him.
22. In my judgment, the appellant is unable to establish that there was a material error of law in the decision of the FtT and it follows that the appeal is dismissed.
DECISION
23. The appeal is dismissed and the decision of the First-tier Tribunal Judge stands.
24. An anonymity direction was made by the First-tier Tribunal and that direction shall continue.

Signed Date

Deputy Upper Tribunal Judge Mandalia

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Mandalia