Tribunal decisions

The decision

First-tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/03523/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 December 2016
On 6 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

TA (Bangladesh)
(anonymity direction MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Ms Sangeetha Iengar (Counsel instructed by Jacobs & Co Solicitors)
For the Respondent: Mr E Tufan (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The Appellant appeals from the decision of the First-tier Tribunal dismissing his appeal against the decision of the Secretary of State to refuse to recognise him as a political refugee. The First-tier Tribunal made an anonymity direction in his favour, and I consider it appropriate that the Appellant continues to be accorded anonymity for these proceedings in the Upper Tribunal.
Relevant background
2. The Appellant is a national of Bangladesh, who was born in 1986. On 20 July 2008, he applied to an Entry Clearance Officer in Dhaka for entry clearance as a working holidaymaker. The application was refused on 28 July 2008, and the Appellant appealed against the refusal.
3. The First-tier Tribunal allowed his appeal in March 2009. Following notification of the successful appeal, an Entry Clearance Officer in Dhaka granted the Appellant entry clearance for a period of two years on 27 April 2009. His working holidaymaker visa was valid until 27 April 2011.
4. The Appellant arrived in the United Kingdom on 10 May 2009, and did not depart from the country before the expiry of his visa. He applied for leave to remain on the basis of family and private life established in the UK on 11 June 2013. His application was refused on 9 July 2013 without a right of appeal. His representatives made a request for his application to be reconsidered on 2 August 2013. This application was rejected on 27 December 2013. The Appellant was encountered by police during a traffic stop on 15 May 2015. He was arrested as an overstayer, and he was detained at Colnbrook IRC from 16 May 2015 to 4 July 2015. On 21 May 2015 it was decided that his human rights claim that was refused on 2013 should be reconsidered, giving him a right of appeal. The Appellant claimed asylum on 3 June 2015.
5. His claim was that he had been a member of the Bangladesh Nationalist party ("BNP") since 2002. In 2003 to 2005 he held the role of school committee secretary. He had worked with his local MP to campaign for votes during election time and had attended programs with this MP.
6. He said that in 2008 a false case was lodged against him accusing him of assaulting the presiding officer during voting. He had gone to court in January 2009 and he was granted bail on condition that he report to the court every four weeks, which he did not do. Before leaving for the UK, he had hidden at his grandfather's house in Moulvibazar for three months.
7. He had been politically active in the UK, attending BNP events and acting as an organising secretary. If he returned to Bangladesh, he feared he would be killed by Awami League supporters.
8. On 24 November 2015, the Secretary of State gave her reasons for refusing to recognise the Appellant as a refugee. With reference to the alleged outstanding court case, it was noted that his passport contained an emigration clearance card dated 5 May 2009. His evidence in interview was that, as he had a case pending, he could not get clearance from his local police station because he had an arrest warrant against him. So his lawyer applied on his behalf in Dhaka to get this emigration clearance card so he would not have any problems leaving Bangladesh. However, objective evidence stated that it was not necessary to obtain an exit permit. Further, as it was not the role of the emigration clearance card to provide evidence of government or police clearance to facilitate a person's departure from Bangladesh, the fact that he held such a card would not prevent the immigration police from stopping him from leaving the country should they have been aware of his outstanding court case.
9. He had submitted five FIRs including an FIR dated 29 December 2008 which he said contained a false allegation against him. It was noted that the other four FIRs were not related to his case and did not refer to him, and so they were not considered to add any weight to his claim.
10. He had also submitted a letter from Anwar Hossain, who claimed to be representing him, and who listed the FIR dated 29 December 2008 in his letter of support. Officials at the British High Commission in Dhaka had attempted to check the veracity of this FIR at the Osmani Nagir Police Station in Sylhet and were unable to do so. They had verified the FIR as non-genuine.
11. He claimed that the other people named on the charges also fled, except for his brother, Abdur Rouf, who remained in Bangladesh. But he had not claimed that his brother had been harmed, although he claimed he was in hiding.
12. Notwithstanding the fact that the FIR which he had submitted was clearly fraudulent, it was noted that the report of the British High Commission in Dhaka stated that a genuine FIR 14/297 was linked to a case concerning an Abdur Rouf. Although no evidence had been submitted showing the relationship between himself and Abdur Rouf, and his relationship to an Abdur Rouf named in the FIR was not established, his risk on return due to his association with him had nonetheless been considered.
13. It was noted that the further FIRs that he had submitted showed Abdur Rouf attending court, and they were therefore inconsistent with his claim that his brother was in hiding. Given his use of fraudulent documentation and also the prevalence of fraudulent and forged documentation in Bangladesh, it was considered unlikely that the additional four FIRs mentioning Abdur Rouf were genuine. But if there were outstanding cases against his brother for which he was not complying with bail conditions, he would not be granted further bail for additional cases, he would be arrested for non-compliance with breach of his original bail conditions.
14. So it was not accepted his brother had been in hiding since 2009, or that the appellant was wanted by the government, or that he would be in danger on return to Bangladesh due to his association with his brother.
The Hearing Before, and the Decision of, the First-tier Tribunal
15. The Appellant's appeal came before Judge Andrew Wilson sitting at Hatton Cross on the First-tier Tribunal on 23 September 2016. Ms Iengar of Counsel appeared on behalf of the Appellant, and Ms John of Counsel appeared on behalf of the Respondent.
16. In her Skeleton Argument, Ms Iengar submitted at paragraph 8 that there was an outstanding arrest warrant in the Appellant's name from 2008. His advocate had confirmed at AB page 22 that the case was one of political enmity. This was also confirmed by two separate letters in the Appellant's bundle provided by Mr Ali Ahmed, Secretary of the BNP, Sylhet district and Mr Shamim, President of the BNP, Sylhet district.
17. At paragraph 19 of her Skeleton Argument, Ms Iengar submitted that, given the nature and extent of the Appellant's participation in sur place activities, and the Bangladeshi authorities' recognised surveillance of political opponents, the Appellant was likely to be of adverse interest to the authorities on return.
18. Moreover, as the Appellant was known to be a committed opponent from his school days, coupled with the outstanding arrest warrant in his name, and his breach of bail conditions, the Appellant was likely to be at risk on return such that he should be granted international protection.
19. In his subsequent decision, Judge Wilson gave detailed reasons for rejecting the various strands of the Appellant's asylum claim. On the topic of the Document Verification Report relied on by the Respondent, the Judge said as follows at paragraph [7] of his decision:
Assertions were made to me that in fact it was simple date error and a mistake made in the interpretation of the Appellant's name from the Sylheti. I am not satisfied that this counter assertion has any real weight. I note the letter from the Appellant's advocate in Sri Lanka contains the reference number and name in respect of which the Respondent searched.
The Application for Permission to Appeal
20. The application for permission to appeal of the Upper Tribunal was settled by a colleague of Ms Iengar in her chambers. Three Grounds were pleaded. Ground 2 was that in making findings rejecting the Appellant's claim to face an associated risk as a result of an FIR being issued against his older brother, Abdur Rouf, the Judge had erred in failing to make findings in relation to a number of documents contained within the Appellant's bundle, including a letter from the Secretary of the BNP confirming that false cases have been filed against all three brothers, including the Appellant.
The Reasons for Granting Permission to Appeal
21. On 23 November 2016, the First-tier Tribunal Judge Page granted permission to appeal for the following reasons:
At paragraph 12 the Judge has acknowledged that there was a genuine FIR but it was the Respondent's view that the FIR relied on by the Appellant was fraudulent. The Judge has said that the Appellant has not established that he was at risk on return by reason of his brother's action, but it is not entirely clear on what basis this finding was made. It was argued that the Judge's reasoning in respect of this issue was inadequate and therefore permission to appeal is granted.
The Hearing in the Upper Tribunal
22. At the hearing before me to determine whether an error of law was made out, Ms Iengar directed my attention to the passage from Judge Wilson's decision quoted above and to the documentary evidence relating to the FIR in the Home Office's bundle.
23. She submitted that Judge Wilson had misunderstood the submission that she had made to him about the interrelationship between these documents and the Document Verification Report, and he had thus not given adequate reasons for finding that the Appellant would not be at risk on return. In reply, Mr Tufan submitted that no error of law was made out.
Discussion
24. I am not persuaded that the Judge erred in law in his disposal of some of the strands of the Appellant's claim, namely (a) the alleged enhanced risk to him rising from his brother's involvement in the BNP or (b) the alleged risk to him arising from his accepted sur place activities, or (c) arising from his mere continued participation in BNP activities on return to Bangladesh, in circumstances where, as the Judge found, he was not a particularly high profile leader.
25. However, I consider there is merit in the error of law challenge articulated by Ms Iengar. There is a procedural difficulty in that an error of law in these terms is not specifically raised in the application for permission to appeal. Ms Iengar recognised this, and so sought permission to advance it as an additional Ground of Appeal. Mr Tufan did not object to permission being granted, but I cannot ignore the fact that the necessary formalities have not been observed.
26. Having reflected on the matter, I consider that it is in accordance with the overriding objective to entertain the error of law challenge advanced by Ms Iengar on the ground that it falls within the scope of the grant of permission to appeal. It does so because the topic of legitimate complaint identified by the Judge granting permission to appeal is the risk implication for the appellant of the finding that the FIR relating to the older brother is genuine.
27. It is apparent from the translated documents in the Home Office bundle that the FIR relied on by the Appellant did not name anybody. The FIR was purportedly filed on 30 December 2008 in respect of an incident which had occurred the day before on 29 December 2008. The name and residence of the accused was said to be unknown. The accused consisted of 100 to 150 unknown persons.
28. It was only in the charge sheet relating to FIR number 14/297 dated 29 March 2009 that the names and addresses of the accused are given. According to the translation, the Appellant is one of the five accused who have absconded, and who therefore have not been sent up for trial. Abdur Rouf is also named as one of the five accused who have absconded. The remaining two accused have said to have been arrested on 17 January 2009 and sent for trial. As the other accused have absconded, warrants of arrest have (allegedly) been issued against them.
29. According to the Document Verification Report dated 18 November 2015, officials of the British High Commission in Dhaka visited the relevant police station in Sylhet on 12 November 2015. They requested the officer in charge to check their records on the veracity of the FIR report number 14/297 dated 29 December 2008. The officer checked the records, but could not find FIR number 14/297 to be existent on the given date of 29 December 2008. He permitted them to check the register, and they could find no links between FIR number 14/297 with the date 29 December 2008. However, FIR number 14/297 was seen to be linked with another date, 29 March 2009 which had seven names under the accused list: Anhar Miah, Monsur Ahmed, Taref, Salim, Sohel, Abdur Rouf and Azad. They examined the FIR but could not find the name [TA] to be amongst the names of the accused.
30. The date of 29 March 2009 corresponds to the date which appears on the charge sheet discussed earlier. The names listed by the British High Commission appear on the charge sheet, save that [TA] on the charge sheet is said to be "Taref" in the list given by the British High Commission.
31. The Verification Report appears to be inaccurate in saying that there are no links between FIR number 14/297 and the date of 29 December 2008. The charge sheet makes it clear that the incident which triggered the FIR being registered on 30 December 2008 allegedly occurred on 29 December 2008.
32. The case which Ms Iengar put to Judge Wilson was that officials from the British High Commission had made a mistake. Firstly, they had wrongly searched the records on the basis that the FIR had been registered on 29 December 2008, rather than upon 30 December 2008. Secondly, they had incorrectly translated the name given for the Appellant in the charge sheet, so as to arrive at the mistaken conclusion that the Appellant was not named in the charge sheet of 29 March 2009, which was apparently accepted as genuine so far as Abdur Rouf was concerned.
33. The charge sheet runs counter to the Appellant's case in that it makes no reference to him having been arrested, and then released on bail, following an attendance at court in January 2009.
34. Also, it does not appear that the purported original of the charge sheet was before the Tribunal so that the Judge could make an informed decision, with the assistance of the court interpreter, as to whether the Appellant's name appeared in the original but had not been properly translated.
35. However, I consider that the Judge has not adequately engaged with Ms Iengar's submission that there is an apparent mistake in the Verification Report in respect of the assertion that there is no link between FIR number 14/297 and the date of 29 December 2008.
36. The only reason given by the Judge for rejecting Counsel's submission of a "simple date error" was that the letter from the Appellant's advocate in Sri Lanka contained the same reference number and name in respect of which the Respondent searched. This does not address the putative mistake. The fact that the advocate gives the same reference number and name is entirely consistent with the hypothesis that the British High Commission has made a simple date error. It does not tend to indicate that the British High Commission has not made such an error. So the reason given by the Judge for rejecting Ms Iengar's hypothesis tends to suggest that he did not understand her submission.
37. At all events, the upshot is that the Judge has not given adequate reasons for rejecting a key part of the Appellant's case by way of appeal, which is that the charge sheet for FIR 14/297 is genuine in relation him as well as in relation to his older brother.
38. Accordingly, I find that the decision of the First-tier Tribunal is vitiated by a material error of law such that the decision must be set aside and re-made.
Conclusion
39. The decision of the First-tier Tribunal contained an error of law, such that it must be set aside and remade.
Directions
40. This appeal will be remitted to the First-tier Tribunal at Hatton Cross for a de novo hearing before any Judge apart from Judge Wilson.
41. None of the findings of fact made by the previous Tribunal shall be preserved.

Direction Regarding Anonymity - Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her 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

Deputy Upper Tribunal Judge Monson