Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02762/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 September 2016
On 4 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

miss safia begum
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Mannan, of counsel instructed by KC Solicitors
For the Respondent: Mr E Tufan, a Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal by the appellant against a decision of the First-tier Tribunal, Judge Coutts, who, in a determination promulgated on 7 July 2016, dismissed her appeal.
Background
2. The appellant is a citizen of Bangladesh and her date of birth is 22 October 1997. She left Bangladesh travelling with her mother in March 2011, entering the United Kingdom on a family visit visa valid until 7 August 2011. On 3 August 2011 the appellant's mother applied for leave to remain in the UK outside of the Immigration Rules with the appellant as her dependant. The Secretary of State refused that application. The appellant's mother appealed against that decision on 10 November 2011. The First-tier Tribunal dismissed the appeal on 19 December 2011. The appellant's mother appealed against the First-tier Tribunal's decision and on 26 June 2012, the appellant's appeal was heard in the Upper Tribunal and was dismissed on 3 July 2012. The appellant's appeal rights were exhausted on 20 July 2012 and an enforcement notice was served on 7 October 2012. In February 2014 the appellant's mother returned to Bangladesh whilst the appellant remained in the United Kingdom. On 16 June 2015 the appellant made a claim for asylum, humanitarian protection and for leave to remain on Article 8 of the European Convention on Human Rights ('ECHR'). The Secretary of State refused that application on 3 November 2015 and on the same date served removal directions. The Secretary of State rejected the appellant's claim for asylum because she did not accept the appellant's evidence in relation to her father's political activities as credible. The Secretary of State did not accept that the alleged attacks on the appellant's brothers were as a result of her father's political activities. The Secretary of State considered that the appellant could internally relocate within Bangladesh with members of her family. The appellant appealed against the decision to the First-tier Tribunal.
The appeal to the First-tier Tribunal
3. The First-tier Tribunal did not accept that the reason for the killing of the appellant's brother was politically motivated and did not consider that the appellant was at risk on return to Bangladesh. The Tribunal also considered that the appellant could relocate to another area of Bangladesh and be safe if other members of her family were to relocate with her. When considering Article 8 of the ECHR the Tribunal considered that it would not be disproportionate for the appellant to be removed to Bangladesh. The appellant applied for permission to appeal to the Upper Tribunal. On 29 July 2016 First-tier Tribunal Judge Saffer granted the appellant permission to appeal.
The Appeal to the Upper Tribunal
Summary of Submissions
4. The first ground of appeal is essentially that the judge erred by applying the wrong standard of proof. It is asserted that at paragraph 48 the judge concluded that he could not accept that the murder of the appellant's brother was politically motivated and could not be certain that the name Anhar refers to the appellant's father's political opponent, Mr Anhar Miah. It is asserted that the standard of proof is the lower civil standard and therefore the judge did not need to be certain. Mr Mannan submitted that the use of the word 'certain' implies that the judge considered that there needed to be a second name in the newspaper article. He submitted that the judge should have accepted that the killing of the appellant's brother was perpetrated by Anhar and that that Anhar must be Anhar Miah. It is also asserted that the judge erred in stating, in paragraph 50, that if the attack was politically motivated the Bangladesh Jatiyo Party ('BJP') letter would have said so. It is submitted that the judge reached an irrational conclusion as there could be no other reason for the BJP issuing a letter of condolence other than because this was a politically motivated killing. He submitted that it would be very odd for the BJP to write such a letter if there was not a political motivation.
5. It is submitted that the judge raised a number of questions and queries that ought to have been put to the appellant to enable her to explain any concerns that the First-tier Tribunal Judge clearly had. It is also submitted that the judge used those inconsistencies to find against the appellant's claim. It is submitted that the judge erred in failing to make clear credibility findings in respect of the appellant's oral and written testimony. Reliance is placed on the case of MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC) 28 October 2013.
6. It is submitted that the judge failed to consider the fact that the matters had been published in newspapers and were therefore in the public domain when considering whether or not the appellant could internally relocate. Mr Mannan submitted that it is critical to an assessment of the ability to relocate to make findings on the effect of this information being publicly available.
7. It is also submitted that the Tribunal erred in concluding that there is a functioning judiciary. Reference is made to the country information report which confirms the corruption amongst the police force. It is submitted that the judge failed to have regard to this when making findings about protection.
8. It is also asserted that the judge failed to properly consider paragraph 276ADE of the Immigration Rules and that the appellant might face very significant obstacles to reintegration in light of all the accepted facts of the case.
9. Mr Tufan submitted that the appellant could relocate with all or any one of her family members. He submitted that if the family were at risk they could all relocate together. He submitted that in any event the family are all still living in the same household, the appellant's mother went back to Bangladesh and is living in the household. He submitted that the use of the word 'certain' by the judge was not connected to the standard of proof, it was simply a manner of speaking. He submitted that the politician was not named by his surname. There is no evidence of how popular the name is and that it could have been anyone. He submitted that the killing was clearly motivated by robbery with the amount that was stolen from the appellant's brother. He submitted that the FIR does not say that the killing was politically motivated and that the condolence letter from the BJP simply refers to wicked people. If this was a letter written in support of the appellant's claim or if written because the BJP were concerned about the political motive for the killing, then that fact would have been set out on the face of the letter.
10. Mr Tufan submitted that the judge in setting out the queries, for example at paragraph 57, was merely stating that many of the assertions were not backed at all by the appellant. He also submitted that the facts as represented by the appellant were not credible and the judge was entitled to question those facts in terms of the lack of detail that was given. He submitted that the judge was entitled and required to take into account the Section 8 issues regarding the timing of the appellant's asylum claim.
11. In reply Mr Mannan submitted that the judge's conclusions at paragraphs 59 to 61 ignore the fundamental point about internal relocation. When a matter is in the public domain it could make it enormously difficult to relocate. The judge did not make any findings or engage with that evidence. He submitted that paragraph 48 has to be considered in light of the consideration by the judge at paragraphs 43 to 47 of the evidence. He submitted that just because there has been a robbery does not mean that the killing was not politically motivated.
Discussion
The asylum decision
12. The First-tier Tribunal was satisfied that the appellant's brother was attacked and killed in Bangladesh in February 2014. The judge set out at paragraph 44:
"44. It is also consistent with the documentary evidence that has been produced: namely, the appellant's brother's death certificate, his hospital documents, letter of condolence from the BJP dated 13 March 2014, the various newspaper articles and the first information report (FIR) which was made to the police by the appellant's father, Mr Arshad Miah.
45. It is also understandable that this dreadful event would have a profound effect upon the family.
46. In his evidence, Mr Kabir, explained how the appellant's mother suffered a form of breakdown upon hearing the news of her son and that he had to accompany her to Bangladesh because she was not able to return there alone. It is also understandable that the appellant's father would be affected in a similar way and that this caused him to retire from his political activities.
47. The oral evidence regarding the appellant's parent's health is also supported by two handwritten letters dated 26 May 2016, from Dr M. Nurul Afsar, cardiologist and diabetologist. These say that the appellant's parents are suffering from mental illness and depression and that in the case of her mother she is bedridden and in the case of her father he is very seriously ill."
13. The judge in considering that evidence then went on to consider:
"48. However, I am not satisfied that the killing of the appellant's brother was politically motivated and perpetrated by Mr Anhar Miah. I accept that the newspaper article dated 27 February 2014 mentions the name 'Anhar' but it gives no second name. I cannot be certain this relates to him.
49. Moreover, Mr Anhar Miah is not named in the other documentation; in particular, the FIR by the appellant's father does not name him as a suspect but lists twelve other people as being responsible. It recounts the details of the assault on the appellant's brother and lists a number of witnesses. It does not say that it was believed to be politically motivated but says that the appellant's brother was robbed of Tk126,000.00 together with a necklace and bracelet.
50. If the attack had been politically motivated then one would have expected the condolence letter from the BJP, dated 13 March 2014, to have said so but it only says that the appellant's brother was killed by several wicked persons.
51. It follows therefore that I do not accept that the appellant's other brother was threatened and pushed off his bicycle by the same people who killed her brother."
14. The judge was considering whether or not the motivation for the appellant's brother's murder was political. The newspaper report was one item so although the judge sets out at paragraph 48 that he cannot be certain that the newspaper article referred to Mr Anhar Miah this must be read in light of the subsequent paragraphs. Clearly the judge considered all the documentation that referred to the killing of the appellant's brother and because none of them mentioned either Mr Anhar Miah or a political involvement and listed 12 other suspects that gave rise to the doubts the judge expressed in paragraph 48 that the newspaper article of 27 February 2014 related to Anhar Miah. I do not consider that the judge was applying a higher standard of proof than that required. It is clear that the judge had in mind the correct standard of proof. At paragraph 8 of the decision the judge records that the standard of proof is "lower than the civil standard of the balance of probabilities".
15. At paragraph 50 the judge states that if the attack had been politically motivated then one would have expected the condolence letter from the BJP to have said so. It was submitted that the only reason that the BJP were likely to have written a letter was because it was politically motivated. This ignores the fact that the appellant's father was the former General Secretary of the BJP. The conclusion reached by the judge was not irrational. The judge considered this letter in the round alongside the other evidence submitted in support of the claim that the appellant's brother's killing was politically motivated. The letter from the BJP refers only to the appellant's brother being killed by several wicked persons. Alongside the other evidence that also fails to record any political motivation for the killing this was not a finding that was irrational, it was a finding that was open to the judge.
16. It is asserted that the judge ought to have put various questions to the appellant to enable her to explain any concerns that the judge had. In particular reference is made to paragraph 55. The judge sets out in that paragraph:
"55. There are no details given regarding the assertion that the appellant's brothers are not going outside of the home. Is this all the time? Do they work? If not who supports the family financially if the appellant's father is not working? There is no evidence from her brothers in support of this assertion. The appellant's evidence was that the household also included her paternal grandmother and uncle. Who then looks after them and is it the case that they also do not leave the home? It follows therefore that from these inconsistencies I do not find this to be credible.
56. In addition, the appellant's father says that her two sisters have had to stop studying and remain at home and are now looking after him and their mother. Again there is no evidence from the appellant's sisters to support this assertion. The oral evidence was that those who seek to harm them do not live in the same village but in another village, Sikkah, which is approximately twenty minute's walk on foot from the family home. The appellant's mother and father are in poor health. It is therefore plausible that their two daughters would have changed their plans to care for them."
17. It does appear that the First-tier Tribunal Judge placed weight on the inconsistencies that he had identified when reaching a conclusion with regard to the credibility of the assertion that the appellant's family do not go outside of the family home. There may well have been credible explanations had these matters been put to the appellant. I find that it was an error of law for the judge to reach findings based on his own assumptions e.g. the judge's supposition that it would be plausible for the appellant's two sisters to have changed their plans to care for their parents. However, for the reasons given later in this decision I do not consider that this was a material error of law.
18. It is asserted that the judge failed to make clear credibility findings in respect of the appellant's oral and written testimony. A judge does not need to set out every single piece of evidence that has been considered and reach conclusions in relation to each piece of evidence. The judge in this case set out with clarity that he accepts the appellant's evidence that her brother was attacked and killed in Bangladesh and that this has had a profound effect upon the family. The essential part of the claim was that the killing was politically motivated. The judge set out in a number of paragraphs why he did not accept that the killing was politically motivated. The judge refers to a number of documents none of which make reference to a political motivation. The judge also considered the evidence relating to the appellant's father pursuit of justice for his son. The judge, at paragraph 53, found:
"53. The appellant's father has been able to make a complaint to the police and his evidence is that the trial is ongoing and has not been stopped by the authorities. The fact that these legal proceedings are expensive and are causing financial worries for him is credible but does not amount to persecution.
54. Moreover, the evidence shows that the appellant's father has been active and open in bringing his son's death to a wider audience which is shown by the newspaper articles and the condolence letter from the BJP. He did not fear doing so.
55. There are no details given regarding the assertion that the appellant's brothers are not going outside of the home...".
19. The judge acknowledged that there may have been some harassment against the appellant's family. The judge set out at paragraph 58:
"58. It is possible, given that it is claimed that those accused of attacking the appellant's brother come from another village, that there may have been some harassment against the appellant's family owing to the events surrounding his killing and the complaint that their father has filed with the police. However, this is not enough to amount to persecution and I find that the appellant can safely be returned to Bangladesh."
20. It is clear that the judge made findings in respect of the core of the claim. He set out the evidence of the appellant that he accepts and also the limit to what he accepted. The judge has given adequate reasons for his findings.
21. With regard to internal relocation it is not clear what submissions were made before the First-tier Tribunal with regard to the relevance of the fact that matters had been published in newspapers and therefore in the public domain and how that might cause problems if the family relocated. There was no reference to any objective evidence or subjective evidence that indicate that the matters being published in newspapers some two years ago would cause problems if the family relocated now. The judge at paragraph 63 considered:
"63. The weight of evidence points towards the appellant's father being a prominent local politician; the former general secretary of the BJP for the Jogonnathan police station district. His political opponent, Mr Anhar Miah, who he fears, covers the same political district which was confirmed by the oral evidence. There is no reason to think that the influence by Mr Anhar Miah extends beyond that district or that if it did he would be able to cause others to persecute the appellant and her family.
64. The objective evidence shows that there is a functioning judiciary and police force in Bangladesh and the subjective evidence shows that the appellant's family have been willing to avail themselves of this protection even in their home location where they claim to be living in fear."
22. The judge has taken into consideration the appellant's father's prominent political position. Whilst the judge does not refer directly to matters being published in the newspapers when considering internal relocation, he referred to the newspaper report of 27 August 2014 and considered all the documentation that was before him. The judge clearly has considered the extent, geographically, of the influence that the appellant's father's political opponent would have. He notes that the appellant's father has been able to bring matters to the attention of the local police.
23. There was no material error of law in the First-tier Tribunal's decision that the appellant can return safely to Bangladesh.
24. Given my findings above the ground of appeal in relation to internal relocation is immaterial. However, as the judge considered this I deal with it briefly. It is submitted that the judge failed to determine whether it would be reasonable for the family to relocate especially the appellant. Reliance is placed on the case of AH (Sudan) & Others v Secretary of State for the Home Department [2007] EWCA Civ 297. In the context of a claim for international protection the test is a rigorous one as re-iterated throughout the case law, for example AH (Sudan):
'41. ? Nevertheless, as Brooke LJ also observed there, the test of undue harshness "is still a very rigorous test", a point re-emphasised by Lord Carswell [2006] 2 AC 426, para 67 (and, I apprehend, accepted by the other members of the Committee) in Januzi itself ?'
25. The rigorousness of the test and the question to be answered is as expressed in the speech of Lord Brown of Eaton-Under-Heywood:
'42. ? Given that they can now safely be returned home, only proof that their lives on return would be quite simply intolerable compared even to the problems and deprivations of so many of their fellow countrymen would entitle them to refugee status. Compassion alone cannot justify the grant of asylum.'
26. The judge accepted the objective evidence that for a young Muslim woman to relocate without male relatives would be difficult and she may experience problems. The judge considered that the appellant could make plans from the UK to relocate with one or more members of her family. He considered that the family were able to function as a family and that the evidence does not indicate that the appellant's parents are unable to travel. The judge considered that the appellant's case is that her whole family are living in fear so that it would be in their interests, if that were so, to relocate.
27. From the evidence available to the judge (and given the high hurdle that the appellant must overcome in order to demonstrate that it would be unduly harsh for her to relocate) the decision was one which was reasonably open to him. There is no material error of law in the judge's finding.
The Article 8 decision
28. It is asserted that the judge failed to consider paragraph 276ADE of the Immigration Rules. No specific reasons are given in the grounds of appeal as to why the appellant may face significant obstacles to reintegration other than a mention of 'all the accepted facts of the case'. At paragraph 71 the judge indicated that there was no claim made by the appellant in respect of private or family life under the Rules but that she made a claim under Article 8 of the ECHR, presumably a reference to a claim outside the Rules. However, I note that the Reasons for Refusal Letter did consider whether or not the appellant met the requirements of paragraph 276ADE. The Secretary of State considered that the appellant would not face any significant obstacles reintegrating into life in Bangladesh because she was familiar with the language and culture and has family members who continue to reside there including her parents and siblings. If the judge erred by failing to consider paragraph 276ADE then this would not be a material error on the facts found by the judge when assessing Article 8 outside the Immigration Rules. The judge, in finding that any interference with the appellant's article 8 rights would be proportionate, took into account that the appellant is an adult, she spent her formative years in Bangladesh, is a Muslim by faith and understands the culture and that she would have her family to support her if returned to Bangladesh. These are the same factors that would be relevant to consideration of the 'very significant obstacles' test in paragraph 276ADE. I find there is no merit in this ground of appeal.
Decision
29. The decision of the First-tier Tribunal does not contain a material error of law. The Secretary of State's decision therefore stands.
30. No anonymity direction has been made.

Signed P M Ramshaw Date 3 October 2016

Deputy Upper Tribunal Judge Ramshaw