Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03707/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 November 2016
On 23 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

TH
(ANONYMITY DIRECTION made)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: Ms S Sher, Counsel instructed by Ashfield LLP
For the Respondent: Mr P Singh, Home Office Presenting Officer

Anonymity
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 parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS

1. The appellant is a citizen of Bangladesh born on 19 October 1981 whose application for asylum was refused. His ensuing appeal to the First-tier Tribunal was heard by Judge Somal. In a decision promulgated on 25 July 2016, the judge dismissed the appeal. The appellant now appeals that decision.

2. The appellant's case, in summary, is that he is of Bihari ethnicity and faces risk on return to Bangladesh as a consequence. He has given an account of suffering attacks, torture and discrimination (as well as his father being killed) as a result of being Bihari.

3. Judge Somal did not find the appellant credible and rejected his account. However, she accepted that he is Bihari.

4. At paragraph 47 she considered the risk faced by Biharis and concluded that

"it is clear from the objective evidence that Biharis are citizens of Bangladesh and can safely return there."

5. At paragraph 47, the judge also stated:

"I have considered the objective evidence, the Country of Origin Information Report and the UN High Commissioner for Refugee's note on the nationality and status of the Urdu speaking community in Bangladesh 17 December 2009 which states:

"Members of the Urdu speaking community are entitled to apply for administrative and judicial remedies in accordance with the laws of Bangladesh in the same manner as any other Bangladeshi citizen. They also have the right to be issued with passports. Hence the relevant Bangladeshi diplomatic or consular representation should be contacted in cases where members of the Urdu speaking community outside the country require travel documents including for the purposes of return to Bangladesh".

Grounds of appeal and submissions

6. The grounds of appeal submit that the judge erred by failing to take into consideration the objective evidence adduced by the appellant. The grounds assert that this evidence demonstrates that Biharis are not accepted as citizens and are subjected to discrimination which amounts to persecution.

7. Ms Sher elaborated on the grounds, arguing that the judge's decision was not balanced as she had only referred to and relied upon the Secretary of State's objective evidence. If the judge decided to not give weight to the appellant's objective evidence, she ought to have explained her reasons.

8. Mr Singh argued that the judge correctly set out the evidence to show the appellant was a Bangladeshi national and that it is apparent from paragraph 47 of the decision that the objective evidence was considered. Mr Singh submitted that the judge was not required to set out all the documents before her and she has addressed the relevant matters.

Consideration

9. The judge has not made any reference to the objective evidence submitted by the appellant. Nor has she explained what weight, if any, she gave to this evidence. The only objective evidence referred to in the decision is a Country of Origin Information Report and the UN High Commissioner for Refugee's note on the nationality and status of the Urdu speaking community in Bangladesh, both of which are documents relied on by the Secretary of State in the refusal decision dated 2 December 2015.

10. I agree with Ms Sher that the judge ought to have referred to, and explained her reasoning in respect of, the objective evidence adduced by the appellant and that her failure to do so amounts to an error of law.

11. At the error of law hearing I asked Ms Sher to show me the objective evidence that, in her view, should have been taken into consideration by the judge.

12. One of the documents Ms Sher highlighted was an undated article by Khalid Hussain who is described as the President of the Association of Young Generation of Urdu Speaking Community. It is unclear where this article was published. A footnote to the article mentions another article dated January 2009 so I accept the article is more recent than that date. The article describes the plight of Biharis, saying, inter alia, that they face discrimination in the job market, live in slum conditions and have a lack of education and health care facilities. It also suggests Biharis are being denied access to a passport.

13. Another article is taken from "the Milli Gazette" which describes itself as Indian Muslim's leading newspaper. The article, dated 24 January 2013, mentions the poverty faced by Biharis but also states that second generation Biharis have been granted a right of Bangladeshi citizenship and that between 70% and 80% have registered and received national identify documents.

14. Ms Sher also drew my attention to a 2011 report by the World Council of Churches. The report states that in 2008 the nationality rights of Biharis in Bangladesh were recognised but that many of them are not able to obtain proper documents, jobs, passports or compensation for their property confiscated during the war.

15. The information adduced by the appellant (all of which I have carefully reviewed) is very limited. It consists, for the most part, of short newspaper articles about Biharis from publications located in the region as well as a five year old report by the World Council of Churches which is mostly about issues other than Biharis. Taken together, this evidence, whilst indicating that Biharis face difficult circumstances, falls a long way short of showing persecution under the Refugee Convention. Indeed, the article from the Milli Gazette referred to above and which was highlighted by Ms Sher as supporting the appellant's case indicates that, contrary to Ms Sher's claim, most Biharis have in fact received national identity documents.

16. The objective evidence that was before the First-tier Tribunal does not support a finding that the appellant would be at risk of persecution on return to Bangladesh on account of his Bihari ethnicity. Accordingly, even though I have found that the judge made an error by not referring to or making a finding in respect of the objective evidence adduced by the appellant, I am satisfied that the error was not material.

Decision
17. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
18. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 22 November 2016