Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03297/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 September 2016
On 28 September 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

LK
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Benitez, of Counsel instructed by Schneider Goldstein, Solicitors
For the Respondent: Ms M Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant arrived in the United Kingdom in 2002. Following a failed application to remain in 2008 he was encountered working illegally. He made a further immigration application which was refused. He clamed asylum on 22 June 2015, claiming to fear persecution on rerun to Bangladesh as a Bihari Muslim.
2. The respondent refused to grant asylum or other protection in a decision of 18 November 2015. The appellant sought to appeal against that decision, which appeal came before First-tier Tribunal Judge Oliver on 18 May 2016. His appeal was dismissed.
3. The appellant sought to appeal against that decision and permission was granted to do so by Upper Tribunal Judge Goldstein on 3 August 2016. Thus it is that the matter comes before me to determine whether or not that decision is to be upheld or not.
4. Fundamentally it is a reasons challenge made to the decision on the basis that the reasoning of the Judge was wholly inadequate. It is said that the Judge failed to consider the situation of the appellant as against the background conditions informed by country reports. Given that challenge it is important to consider what reports were in fact placed before the Judge at the hearing. There is an Amnesty International published statement dated 12 August 2014.It contends that the Bangladesh government should do more to protect the minority Bihari community from attacks and to ensure that those responsible are brought to justice. Reference is made in that statement to an attack upon the Bihari community living in the Kurmitola refugee camp in Dhaka. On 14 June 2014 nine members of one family were left dead and some ten homes were damaged. It is said that those who committed the offence were Bengalis living in the adjacent community. The police have indicated that they are investigating the matter.
5. By way of background it is said that since Bangladesh's independence minority groups, such as the Bihari's, have been discriminated against and attacked. In the past decade, arsonists, allegedly from the majority Bengali community have set fire to the homes and shops of Hindus, Buddhists and the indigenous people of the Chittagong Hill Tracks. In 2014 the Biharis have borne the brunt of such attacks. It is said that the attack upon the camp followed days of tension and clashes between the camp inhabitants and the Bengalis from the neighbouring slums.
6. The Kurmitola, camp which is home to some 412 families, benefits from free water and electricity provided by the government. It seems that there may have been some disagreement as to the sharing of such electricity with the slum residents.
7. There is also the Bangladesh 2014 Human Rights Report which speaks of instances of societal violence against religious and ethnic monitories, although the government and civil society leaders claim that the acts had political or economic motivations rather than religious ones. There was a passage dealing with internally displaced persons and how low level armed conflict had displaced tens of thousands of indigenous persons internally. The government relocated landless Bengalis from the plains. It is said that IDPs lack sufficient access to courts and legal aid. The commission reported settlers expropriating indigenous land, using false titles, intimidation, fraud and manipulation in domain claims. The numbers of IDPs remained disputed. In 2000 it was estimated at 500,000 to include non-indigenous persons. There is a passage dealing with national, racial and ethnic minorities. It was said that violent attacks against religious minorities continued, although the motivations for such attacks often appeared to be economic or political. Violence against Hindus was specified as were attacks against the Mandi Roman Catholic farmers.
8. Brief reference is then made to the June 2014 attack upon the Bihari. Thereafter the reports speaks of the indigenous people, usually in land dispute confrontations.
9. Such would seem to be the extent of the background material that was placed before the Judge and Miss Benitez, who represented the appellant, was not able to present to me any further details, having considered the bundles for herself.
10. It is against that background that challenge is made to the remark by the Judge at paragraph 29 of the determination:
"His claim to fear persecution is based solely on his assertion that he is a Bihari. There is certainly evidence of discrimination against Biharis, but serious abuse is not widespread. What I firmly conclude is that when he came to the United Kingdom he had no such fear. Not only did he not raise such a fear on arrival but he did not mention it when found working illegally and even more relevantly when making his application to remain. If that were not conclusive his claim to have any fear on return is further undermined by his application for a travel document to return to Bangladesh in 2011."
11. Although the reports summarised clearly indicate that there was a significant degree of discrimination and violence towards certain of the minorities, the only clear example which is given of the violence towards Biharis in particular, is that of 14 July. What seems to emerge from the background reports is that the Hindus would seem to be receiving a great deal of difficulty.
12. The background material which was presented before the Judge also includes that to be found in the detailed reasons for refusal. There is a detailed consideration of the matter by reference to the Home Office Country of Origin Report on Bangladesh 2013 which makes reference to a High Court action brought by ten residents of the Geneva camp seeking voting rights. The Court ruled that the Election Commission be directed enrol the petitioners and another Urdu speaking people, who want to be enrolled in the electoral roles and accordingly give them a national identity card without further delay.
13. According to the UNHCR report of December 2009 80% of eligible Urdu speaking voters obtain national identity cards. A number of Urdu speakers have allegedly chosen not to register as voters, fearing that it would undermine their long standing call to be repatriated. In addition to enable them voting nationally, the identity card enables the holders to claim a range of rights which are set out in the decision letter.
14. The conclusion, therefore, based upon that evidence, is that even as a claimed Bihari Muslim who has lived in Bangladesh, the appellant would be recognised now as a Bangladeshi national entitled to the national identity card and entitled to the rights set out. So far as the specific matters relating to Bihari are concerned, it was noted that he had lived in a Bihar camp in Dhaka with no difficulty, although he had provided no documentary proof of that matter. It is suggested that there was a distinction between the Urdu speaking Bihari minority and other Bangladeshi Muslims in that the Urdu speaking community in Bangladesh could be considered a "linguistic diaspora". The label" Bihari" been used in reference the descendants of over 1,000,000 Urdu speaking Muslims who had migrated from India to East Bengal following the country's creation in 1947. It was recognised that, following the country's liberation, the Urdu speaking community were ostracised but that that situation has now significantly changed, the UNHCR having reported that many of the Urdu speaking communities, including these in the open camps, living alongside the Bengali commit and speak Bengali.
15. That is of significance because, in terms of the appellant's integration or reintegration into Bangladesh, it is noted that although it is said that the Biharis speak Urdu "all the time" the appellant claims that he speaks no Urdu but rather speaks Bengali. Thus he would be speaking the language of most of those in Bangladesh.
16. It was the view of the respondent in the decision that the appellant is not at risk in any way and on return he would be able to participate as a citizen in Bangladesh as well as speaking the language. The issue of risk was considered very carefully at paragraphs 37 to 47 in the respondent's decision letter.
17. It is clear from paragraph 31 that the Judge has borne in mind those passages in that he says as follows:
"Whatever may have been the problems with his nationality status in the past, the position had changed radically by 2008. Before then three would have been a good chance of him being accepted into Bangladesh nationality but after then he had a right to apply for citizenship. As a Bengali speaker he would fit in and not draw attention to himself. He has not given an evidence of ever supporting a campaign for the protection of Bihari people.
Accordingly I reject his claim to have a valid asylum claim and to fear any ill-treatment on return."
18. I find, contrary to what is set out in the grounds of appeal, that the Judge, albeit briefly, has clearly given consideration to the background material submitted on behalf of the appellant and that set out in detail in the decision letter. It is not necessary for the Judge to repeat everything that is set out and I find that it is clear that he has borne all relevant matters in mind.
19. The appellant claimed that he would face persecution upon return because he had a particular profile, namely that he supported a campaign for the protection of Bihari people. The Judge found no evidence of that and none has been presented in the course of the grounds.
20. Whether he is Bihari who can return to the camps, there is nothing to indicate that apart from the one incident that has been highlighted in 2014, that there is any real danger in the camps. His parents lived there all their lives without difficulty as did he before he left. There is clear evidence that the Bihari can live in harmony with their Bengali neighbours. As he speaks Bengali that process will be even greater advanced.
21. He can return and claim a national identity card and can enjoy the benefits of citizenship.
22. It would seem entirely correct on that basis that there is really little substance to his claim for asylum or any real basis to consider that he would, upon return, suffer any harm such as to engage Article 3 of the ECHR.
23. As the judge noted at paragraph 28 of the determination, the appellant had lived for 28 years in Bangladesh seemingly without any adverse attention coming to him.
24. For sound reasons the judge also indicated, both in paragraphs 29 and 30, that credibility was in any event undermined. Consideration was also given to private and family life.
25. Whilst recognising that it is an extremely brief determination, I find that the Judge has adequately dealt with the evidence that was presented.
26. Criticism is made that the Judge did not make a positive finding as to whether he was Bihari. Perhaps that is less relevant given that the Judge approached the matter at its highest that he was. The Judge found for sustainable reasons that the appellant had no profile such as to bring him to the attention of the authorities and considered in all the circumstances that he could safely return. I find that the decision was one that is not impugned by error of law or lack of scrutiny or lack of reasons.
27. In the circumstances therefore the appellant's appeal is dismissed. The decision of the First-tier Tribunal shall stand.

Notice of Decision
The appeal is dismissed. The decision of Judge Oliver shall stand.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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 their 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.

Signed Date 28 September 2016

Upper Tribunal Judge King TD