Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02705/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21st September 2016
On 3rd October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

M J A
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Saini, Counsel
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order.
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

1. The Appellant, a national of Bangladesh, appealed to the First-tier Tribunal against a decision of the Secretary of State dated 3rd November 2015 to refuse his application for asylum. First-tier Tribunal Judge Rhys-Davies dismissed the Appellant's appeal in a decision promulgated on 22nd July 2016. The Appellant appeals against that decision with permission granted on 18th August 2016.
2. The background to this appeal is that the Appellant arrived in the UK with entry clearance as a student on 27th October 2009 and was granted leave to remain until 31st August 2012. He returned to Bangladesh in September 2011, coming back to the UK in November 2011. On 29th August 2012 he made an application for further leave to remain as a student. That application was refused but later reconsidered and the Appellant was granted further leave to remain as a student from 15th December 2013 until 10th July 2014.
3. The Appellant again visited Bangladesh between 9th February and 20th April 2014 and following his return, on 25th April 2014 he was refused leave to enter and his existing leave to remain was curtailed. He appealed against that decision and was granted temporary admission until it was resolved. He appealed against the decision to refuse him leave to enter and that appeal was dismissed by First-tier Tribunal Judge Taylor in a decision promulgated on 19th December 2014. The Upper Tribunal refused permission to appeal on 22nd May 2015. On 17th June 2015 the Appellant claimed asylum and his application was refused on 3rd November 2015, that decision is the subject of this appeal.
4. In summary, the basis for his claim for asylum was that he had been a supporter of the Bangladesh National Party (BNP) since he was 18 years old. He said that he joined the student wing of the party in 2006. He claims that he participated in a BNP demonstration on 7th March 2007 during which he was beaten by police and detained overnight, sustaining soft tissue injuries. He claims that he was injured on 29th December 2008 escaping from an attack by Awami League supporters. He claims that he attended another BNP demonstration on 17th July 2009 in Dhaka and that when police broke up that demonstration he was hit on the back with a rubber bullet and arrested. He claims that he was detained overnight and then released. He claims that he had decided after that to leave Bangladesh and applied for and was granted a student visa and travelled to the UK in October 2009.
5. The Appellant claims that he joined the BNP in the UK, attending an event in December 2009 and continuing to be involved in party activities alongside his studies including attending a demonstration outside Downing Street in 2010 when the Awami League Prime Minister of Bangladesh visited. He claims that he went back to Bangladesh in September 2011 to visit his family and during that visit he married his cousin in an arranged marriage.
6. He returned to the UK and continued his studies whilst he says he was continuing with his activities with BNP UK. He returned to Bangladesh in February 2014 having been told that his mother was unwell and he says that he wished to have physiotherapy treatment there. He says that he was attacked in Bangladesh on 7th April 2014 when walking alone in his hometown. He says that he recognised one of his attackers as a local Awami League thug and he was beaten with an iron rod and a gun was held to his head. He claims that he went to hospital where he was treated for a bleeding leg and general bruising. He claims that he received a threatening phone call and then returned to the UK where he resumed his political activities including attending another demonstration against the Awami League prime minister.
7. First-tier Tribunal Judge Rhys-Davies found that the Appellant's account of events in Bangladesh was wholly incredible [21] and gave a number of reasons for reaching that conclusion. The judge took the decision of First-tier Tribunal Judge Taylor in relation to the cancellation of his previous leave as a starting point in accordance with the decision in Devaseelan [2002] UKIAT 00702. He noted that Judge Taylor found that the Appellant's account lacked credibility generally, based on his failure to offer any adequate explanation or corroboration for various parts of that account. Judge Rhys-Davies acknowledged that Judge Taylor was not determining an asylum appeal but considered that his findings remained relevant and decided that he should treat the Appellant's evidence with caution in those circumstances.
8. Further Judge Rhys-Davies noted that the Appellant had submitted medical evidence to Judge Taylor in support of his claim that he had returned to Bangladesh in February 2014 and had become ill whilst he was there. Judge Rhys-Davies noted that Judge Taylor recorded the Appellant's evidence as being that the injury was a cricket injury and that it became worse when he was in Bangladesh and that this required hospital admission.
9. Judge Rhys-Davies noted that the medical evidence before Judge Taylor differed from that before him and considered that the Appellant's decision to deploy different medical evidence at different appeal hearings damaged his credibility. He considered that the Appellant had submitted a partial picture in each appeal and that the differences between his accounts were matters to be taken into account in accordance with the Devaseelan guidelines. Judge Rhys-Davies concluded that the Appellant deliberately misled Judge Taylor or at the very least withheld very relevant evidence and this damaged his credibility.
10. Judge Rhys-Davies went on to find that the Appellant's credibility was damaged by his failure to claim asylum earlier than he did in accordance with Section 8 of the 2002 Act. Judge Rhys-Davies did not accept the Appellant's explanation for his failure to claim asylum earlier or to claim asylum in 2014 on his re-entry to the UK in light of his alleged recent attack. The judge went on to find that the Appellant's failure to claim asylum when his leave to enter had been curtailed and his continued delay thereafter significantly damaged his credibility.
11. Judge Rhys-Davies found that documentary evidence submitted by the Appellant from Bangladesh was unreliable including arrest warrants submitted in relation to very different offences which the judge noted contained the same reference to the Bangladesh penal code despite being different offences. The judge noted that the Appellant has a lawyer acting on his behalf in Bangladesh and, despite having seven months before making his witness statement, he did not use that time to obtain evidence from that lawyer.
12. Judge Rhys-Davies considered video footage played to the Tribunal during the hearing of an alleged attack on the Appellant's brother and family home but for reasons set out in paragraph 39 the judge found that this did not show a genuine attack and was a further piece of unreliable evidence submitted by the Appellant. The judge also found it not credible that the Appellant's mother and younger brother would have been attacked in the way claimed.
13. Judge Rhys-Davies went on to consider an expert report from Dr Hoque but found that Dr Hoque's report does not provide any opinion or evidence that addresses particular problems with the Appellant's account but simply confirms that his professed individual fear is consistent with the country background evidence. The judge pointed out that this may be because Dr Hoque was unaware of the entirety of the Appellant's account making no reference at all to the alleged April 2014 incident.
14. Judge Rhys-Davies went on to consider a number of letters in support of his claim submitted by the Appellant and found that he attached no weight to these letters because none of the authors of the documents provided a witness statement or attended to give evidence despite some of them purportedly being from other BNP UK members or party officers. The judge also noted that the Appellant had provided no real paper trail of his claimed membership of the BNP and that the letters which had been submitted were dated relatively recently. The judge concluded that the Appellant does not risk persecution in Bangladesh.
15. Judge Rhys-Davies went on to consider whether the Appellant had established that he is a refugee sur place based on his alleged activities in the UK but found that the Appellant does not have a profile in Bangladesh, he does not have a leading or organising role at the events in the UK and that he had not been presented any country background material which might support his claim to be at risk solely because of the sur place activities. The judge further noted that the expert report did not consider this aspect of the Appellant's claim. The judge concluded that the Appellant's claims for asylum, humanitarian protection and under Articles 2 and 3 of the ECHR must be dismissed.
16. The Grounds of Appeal contend that Judge Rhys-Davies was wrong to conclude that the evidence given to Judge Taylor is materially different to his account given in relation to the asylum appeal. It is contended that the judge failed to address the basis of the Appellant's claim. It is contended that the judge failed to consider the Appellant's humanitarian protection claim properly and the judge failed to consider Article 8 adequately.
17. Permission to appeal was granted by First-tier Tribunal Judge Osborne, who decided that it was arguable that the judge failed to separately consider the issues of humanitarian protection and Articles 3 and 8 and that this is an arguable error of law but that all grounds were arguable.
Error of law
18. At the hearing Mr Saini accepted that Article 8 had not been pleaded in the Grounds of Appeal to the First-tier Tribunal and did not pursue that ground before me.
19. The judge approached the appeal by taking the decision of Judge Taylor as his starting point. Mr Saini submitted that the findings in the previous appeal skewed Judge Rhys-Davies' findings. He submitted that it was of particular importance that the context of the appeal before Judge Taylor was a revocation of the Tier 4 licence where the Appellant was trying to explain his absence from his course whereas the context of this appeal was the Appellant's allegations of torture. I do not accept Mr Saini's submission that the different context of the appeal before Judge Taylor detracted from the discrepancies between the evidence. The judge was clearly aware of the context of the earlier appeal and how to approach Judge Taylor's decision and he said so at paragraph 24 highlighting the guidance from the Court of Appeal in the case of R (On the application of YH) v SSHD [2010] EWCA Civ 116.
20. Mr Saini submitted that the decision of Judge Taylor was not in fact contradictory to the evidence before Judge Rhys-Davies. In considering Judge Taylor's decision Judge Rhys-Davies noted that Judge Taylor referred to a medical report of 12th February 2014 and a report of 7th March 2014 advising the Appellant that he was not fit to travel for four weeks. It appears that neither of those reports were before Judge Rhys-Davies. The only medical evidence before Judge Rhys-Davies was a note from New Squire General Hospital dated 7th April 2014 at F1 of the Respondent's bundle which refers to "soft tissue injury" on the Appellant's right arm and right thigh. The judge dealt with this at paragraph 32 noting that that had not been before Judge Taylor even though it ought to have been available to the Appellant at that time and at any event it refers to soft tissue injuries and no mention is made of any back injury.
21. Mr Saini also submitted that the report before Judge Taylor was from a physiotherapist and that it was therefore of less weight in assessing the injuries. However, this report was not before Judge Rhys-Davies and there is nothing in the evidence to indicate that a report from a physiotherapist is of less weight in any event.
22. Mr Saini submitted that the judge's conclusion that the Appellant had deliberately attempted to mislead Judge Taylor was perverse, given that the only purpose of the hearing before Judge Taylor was in establishing the background to the Appellant's absence from the college. However, Judge Rhys-Davies took into account that the Appellant would have asserted the truth of the content of his witness statement and evidence before Judge Taylor and of the different medical evidence submitted at each appeal. The judge was entitled to conclude that the Appellant had decided to deploy different medical evidence at different appeal hearings and was submitting a partial picture in each appeal and that this damaged his credibility. In my view the judge was entitled to conclude that the Appellant deliberately misled Judge Taylor or at the very least withheld very relevant evidence and that this damages his credibility [34].
23. After dealing with Judge Taylor's decision Judge Rhys-Davies went on to consider Section 8 and the damage to the Appellant's credibility for failing to claim asylum earlier. Mr Saini submitted that the judge erred in considering this at that stage without having considered the other factors in the decision. He submitted that the correct place to consider Section 8 is towards the end of a decision in the way that the Secretary of State had done in the Reasons for Refusal Letter. He submitted that the judge considered delay prematurely and that the judge did not consider any internal consistency of the Appellant's claim.
24. However, I accept Mr Kotas' submission that the judge rejected the appeal in relation to credibility for a multitude of reasons. I accept that the issue in relation to Section 8 is a quibble in relation to the format of the judge's decision but does not affect the substance. There is no guidance indicating that Section 8 should be considered at any particular stage of the decision. The judge did not decide that the delay meant that the Appellant's entire claim was not credible but properly, as he was entitled to, concluded that the Appellant's delay damaged his credibility. I am satisfied that the judge was entitled to do so on the basis of the proper application of Section 8.
25. Mr Saini submitted that the judge erred in concluding that the Appellant's claim is "wholly incredible" at the outset of his findings [21]. He submitted that the judge reached that conclusion before going on to analyse the evidence. However, it is clear to me from paragraphs 21 and 22 that the judge was stating his conclusion at the outset but going on to give reasons for that conclusion. This is an issue of style rather than substance and does not amount to a material error of law.
26. Mr Saini submitted that the judge did not grapple with the facts in his decision. However he did not point to any piece of evidence said to have been disregarded by the judge. The judge made findings on all of the evidence and it is not clear how he could be said to have failed to have grappled with the facts. Contrary to Mr Saini's submission the judge did deal with the substance of the Appellant's claim. At paragraph 38 he dealt with the documentary evidence submitted from Bangladesh including the arrest warrants. At paragraph 39 he dealt with the video footage submitted by the Appellant. At paragraph 41 the judge dealt with the expert report. At paragraph 42 the judge dealt with the letters from the UK and Bangladesh. The judge talked about the lack of a paper trail to corroborate the Appellant's claimed membership of the BNP and organising and attending demonstrations and meetings at paragraph 43. The judge had sufficient evidence to reach the conclusions he did and these conclusions were open to him.
27. Mr Saini submitted that the judge erred at paragraph 47 in his approach to the sur place claim. He submitted that the judge should not have dealt with the sur place issue after having found that the Appellant's late claim damaged his credibility. However the Appellant's credibility was very much in issue and the credibility findings were relevant to the assessment of the sur place activities, for example at paragraph 47.a in relation to the appellant's claimed profile in Bangladesh. Further, the judge noted that there was no country background material to support the Appellants' claim to be at risk solely because of his sur place activities. It is difficult to see what more he could have done on the evidence before him.
28. Mr Saini complained that the judge had not dealt separately with humanitarian protection. However, I accept Mr Kotas' submission that this appeal turned on credibility and there is no separate freestanding Article 3 or humanitarian protection claim in the context of the judge's decision that the Appellant's claim was not credible.
29. In conclusion I do not accept that the approach taken by the judge in considering this appeal in any way skewed his analysis of the evidence before him. I do not accept the submission that the findings are perverse. The judge's findings were open to him on the basis of the evidence before him.
30. In all of the circumstances I am satisfied that there is no error of law in the decision of the First-tier Tribunal.
Notice of Decision
There is no material error in the decision of the First-tier Tribunal Judge.

The decision of the First-tier Tribunal Judge shall stand.

Signed Date: 30 September 2016

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date: 30 September 2016

Deputy Upper Tribunal Judge Grimes