Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04107/2016

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 8 August 2016
On 9 November 2016

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

ms shrishtina shrestha
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Chaudhry, Solicitor, of Duncan Lewis & Co Solicitors (Harrow Office)
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Nepal who was born on 12 February 1991. She first entered this country on 15 October 2010 as a student, and her husband (at that time) was also granted entry clearance as her dependant. The appellant's leave was extended subsequently, most recently until 24 February 2015. However, following enquiries which had been made by the respondent on 6 October 2014 the respondent concluded that she had submitted false educational certificates in order to enter this country and on the basis that she was an immigration offender within Section 21(1)(a) of the Immigration Act 1971, she became liable for removal to Nepal.
2. The appellant thereafter submitted a judicial review application but this was refused and following service of a notice informing of her liability to detention, she was detained on 29 February 2016 and removal directions were served on her on 4 March 2016. On that day she made a claim for asylum, which was refused by the respondent on 6 April 2016.
3. The appellant appealed against this decision and her appeal was heard before First-tier Tribunal Judge Buckwell, sitting at Yarl's Wood Detention Centre on 2 June 2016.
4. In a Decision and Reasons promulgated on 15 June 2016, Judge Buckwell dismissed the appellant's appeal, on asylum grounds and also under Article 3 of the ECHR. She now appeals against that decision, permission having been granted by First-tier Tribunal Judge Andrew on 8 July 2016.
5. The appellant was represented before the First-tier Tribunal by Mr Chaudhry, who has also represented the appellant today. At that hearing, Mr Chaudhry had relied upon a skeleton argument (which is referred to below) and also on a relatively small bundle (some 124 pages) which contained some background material relating to Nepal.
6. The appellant's case as advanced in the skeleton argument was that she would face persecution on return to Nepal for two reasons, first because she had converted to Islam in December 2015 "following her discussions with her Muslim friends, and attendances at a mosque" and would for this reason "face persecution from her family and from the Nepalese authorities" and secondly because she still owed money to "a powerful man from a powerful political family in Nepal".
7. It was also argued that she is of "a vulnerable disposition" and that she would face "social discrimination due to her conversion" which she contended "will amount to persecution due to her family's historical practising of the Hindu faith". It was suggested that her "family's targeting will be tantamount to so-called 'honour' based violence for this reason".
8. It was argued at page 4 of the skeleton argument that the appellant could not relocate within Nepal and continue her life elsewhere within the country because she was "a single woman of vulnerable disposition, and is likely to become a marked woman, due to her change of faith which is now illegal in Nepal and her duty as an evangelical Muslim". I deal below with whether or not it can properly be argued that her change of faith is indeed "now illegal" in Nepal, and Mr Chaudhry on the appellant's behalf was unable to demonstrate by reference to the new Nepalese Constitution or in any other way that this was indeed the case.
9. Within the skeleton argument there is reference to what is said to be some "objective evidence" which is said to support the appellant's claim. This amounts to seven items in total.
10. The judge was apparently unimpressed by the appellant's appeal, which he dismissed on all grounds. In a decision which it is said on behalf of the appellant to be very brief (but which amounts to some eleven pages), he made adverse credibility findings regarding the bulk of the appellant's claim. In particular, he did not accept that she would be at risk from the family friend who had lent her money before she came, and he also did not see that there would be any obstacle to her relocating to a Muslim dominated area within Nepal, of which there were some (see paragraph 59). He noted that the asylum claim had been made very late, and only when removal directions were served (at paragraph 57) and his conclusion, at paragraph 60, was that he was "firmly of the view that the appellant wishes to remain in this country as her husband appears to have deserted her and because, and nevertheless, she believes that this country will provide more opportunities for her in life, as compared to returning to Nepal".

Grounds of Appeal
11. There are two grounds of appeal, namely first that the judge "failed to make findings of fact on a number of key matters in this appeal" and secondly that he "failed to give any or adequate consideration to the objective evidence within the appellant's bundle and expressly referred to in the appellant's skeleton argument".
12. Ground 1 is argued at paragraphs 5 to 9 of the grounds, while ground 2 is argued at paragraphs 10 to 18.
13. Regarding ground 1, it is submitted at paragraph 5 that the respondent having accepted that the appellant had converted to Islam, which was the "main aspect of the appellant's account of the risk on return" the finding at paragraph 59 relating to there not being a risk on return due to the appellant's faith was insufficient, because it only contained six lines. It is said that her claim had "concerned a risk on return due to her family's long history of being followers of the Hindu faith and that as she had converted to a non-Hindu faith she would be seen to have caused 'dishonour' to the family". It is noted that the judge had recorded her belief that she "might be killed by family members", but it is said that the judge makes no finding of fact based on risk from her family members. The judge, it is said merely considers the likelihood of her behaviour "attracting the attention of the authorities".
14. It is also asserted that the judge had made no findings of fact based on the evidence that the appellant had converted, as opposed to those Nepalese Muslims "who were born into Muslim families".
15. Also within ground 1, it is asserted that the judge did not specifically consider whether relocation to a Muslim area would be reasonable "in view of her being a single young Muslim convert to Islam". It is submitted that accordingly the finding that the appellant could relocate internally "lacks analysis" and is therefore unsafe.
16. In this regard reliance is also placed on the appellant's account "that she would return to Nepal as a Muslim convert wearing a headscarf". Reference is made to the changes in the Nepalese Constitution which would affect the appellant, in particular as her headscarf "could identify her as being a Muslim".
17. Regarding ground 2, at paragraph 10 of the grounds it is stated as follows:
"10. The appellant submitted a substantial quantity of high-quality, reliable objective evidence demonstrating a significant curtailment of rights of religious conversion from Hinduism".
18. Reference is made at paragraph 12 to a news article exhibited at page 72 of the bundle indicating (it is asserted) "that Nepal's new Constitution bans religious conversions". It is said that "it was submitted on behalf of the appellant that the appellant was at risk of the change in the Constitution and legislation concerning her conversion to Islam". This asserted failure of the judge to consider this evidence and to make findings as to whether the evidence regarding her conversion was accepted or rejected "is of paramount importance".
19. It is also said at paragraph 13 that "there were several other key pieces of objective evidence that shed light on the likelihood of mistreatment that would amount to persecution specifically due to the appellant's religious conversion" and in this regard reference is made to the skeleton argument, which as noted above, contained a few pieces of evidence in this regard.
20. It is said that the judge should have given more attention, or "anxious scrutiny" to the appellant's arguments with specific regard to the evidence submitted, and that had he done so, his findings may well have been different. At paragraph 16, it is said that this failure was not cured by the "generic reference to all of the evidence having been taken into account, at paragraph 55 [of the decision maker]".
21. Objection is also made to the judge's findings with regard to the delayed timing of the asylum application because, it is said, the appellant had instructed her previous representatives in relation to an asylum application prior to her detention.

Arguments made orally at the Hearing
22. At the hearing, on behalf of the appellant, Mr Chaudhry relied upon the grounds, and expanded on them. He submitted that the new Nepalese Constitution had come into effect in September 2015 and, as argued in the grounds, the First-tier Tribunal Judge had not adequately explored the risks aspects which the appellant would now face on return, firstly from her family as a result of her conversion to Islam and, secondly, because there was now a risk from the Nepalese authorities because of the recent change in the Constitution. The Tribunal was reminded that the appellant's evidence was that she would be returning to Nepal wearing a religious headscarf.
23. When asked by the Tribunal what objective evidence should have been considered but had not been, Mr Chaudhry relied especially on the document contained at paragraph 72 of the bundle, referring to the Constitution "barring religious conversion". In the context of this appeal it was important that the judge should have noted this article which suggested that the authorities were "bowing to pressure from hard-line Hindu groups".
24. Also, the material at page 24 onwards of the bundle was important, which was a written statement submitted by the Pax Romana, (the international Catholic movement), which made reference to it now being a criminal act to convert someone from one religion to another. The appellant's evidence before the First-tier Tribunal was that if she was to return to Nepal she would attempt to evangelise. It was submitted that the judge had not given adequate reasons for rejecting that evidence.
25. At page 25 the Pax Romana had given examples of actions taken against Muslims.
26. With regard to a question from the Tribunal as to what course the judge should have taken with regard to existing country guidance on Nepal to the effect that there were Muslim communities within that country where a Muslim who returned could live, Mr Chaudhry submitted that his understanding was that the country guidance was old and therefore it should have been acceptable to depart from it because there had been considerable changes in the country situation. He did not point to any authorities, however, to the effect that being a Muslim per se placed one at risk within Nepal.
27. It was not justifiable for the judge to say that the appellant would be protected by the Nepalese authorities and this was not sustainable on the evidence. At page 28, in the first part of the report from the Asian Human Rights Commission, there was an example given of a Muslim family where little assistance had been provided. When asked by the Tribunal why this appellant could not relocate to an area populated by Muslims, Mr Chaudhry replied that her case was put on the basis that her position should be distinguished from that of someone who was returning who had always been a Muslim because she had converted to Islam. This would be akin to an "honour based situation" from her own family.
28. Mr Chaudhry also then stated that his "understanding" was that the respondent had accepted that she had a subjective fear of return, (although this was certainly not accepted on behalf of the respondent before me).
29. At paragraph 59, there was no specific finding that the appellant would not seek to evangelise. It was also unclear (as argued in the grounds) what the judge had in mind when deciding that she could relocate, especially because she was (on her case) of a vulnerable disposition.
30. In answer to a question from the Tribunal as to whether the judge was entitled to reject her account that she would be at risk from the person who had lent her money (which was at the heart of her claim to be of "a vulnerable disposition"), Mr Chaudhry responded that an important part of her appeal was the judge's finding that she could seek the protection of the authorities.
31. Mr Chaudhry also referred to the material at page 123 of the bundle, which was a report from Amnesty International headed "Nepal: new Constitution fails to adequately protect women and marginalise communities", and starts by stating that "Amnesty International is concerned by several provisions in Nepal's new Constitution".
32. In answer to a question from the Tribunal as to whether Mr Chaudhry could point me to any evidence that a change of faith is illegal under the Constitution, as asserted within the skeleton argument which was before the judge (at page 4, under "internal relocation" where it is said that "the appellant is a single woman of a vulnerable disposition, and is likely to become a marked woman, due to her change of faith which is now illegal in Nepal..."), Mr Chaudhry replied that he did not have the Constitution in front of him and therefore could not cite what the specific reference was within the Constitution, but it did suggest that converts would face difficulties. "Taken in the round" the judge had not considered the evidence properly. He had not made any findings as to what risk she would be under because of changes in the Constitution.

Arguments on behalf of the Respondent
33. On behalf of the respondent, Mr Bramble submitted that the focus in this appeal was the judge's alleged failure to have proper regard to the objective material (as so called within the grounds) which material had been before him. The key point here was the way this was argued within ground 2, at paragraph 10, which was that, as already noted above the appellant had "submitted a substantial quantity of high-quality, reliable objective evidence demonstrating a significant curtailment of rights of religious conversion from Hinduism". That assertion had been maintained at this hearing.
34. What the Tribunal had to consider was how the judge in making his decision had gone about this.
35. At paragraphs 48 to 51, the judge had set out the appellant's submissions. It was important to note that in those paragraphs the judge had set out the key relevant material, including that contained at pages 72 and 25 of the bundle. At paragraph 49, the judge had also referred to the appellant's submission with regard to the argument contained within the skeleton argument that the appellant would be identified in Nepal as a Muslim by the wearing of a headscarf, and that she had converted to Islam while in this country. At paragraph 50 there was specific reference to the appellant's argument based on the criminalisation of conversion and denial of rights within Nepal. Then at paragraph 51, there was reference to the argument that the appellant would be vulnerable as a single woman.
36. Although the decision was relatively short, it was not necessary in a decision to refer to every specific document and at paragraph 55 the judge had made it clear that he had taken all the evidence into account, whether or not specifically referred to within the decision.
37. Accordingly, it was clear from the Decision that the judge had taken into account all the arguments which had been made. However, by the time of the decision, the judge clearly had issues with the appellant's credibility. In particular he was concerned about the delay in making the asylum application, when it was clearly evident on her evidence that she had converted to Islam in December 2015 (see paragraphs 56 and 57 of the decision).
38. At paragraph 58, the judge addressed the other aspect of this case, which was the issue of whether or not the appellant had borrowed money from a friend of her family, and the possibility of threats being made against her or other family members by this friend, which he rejected. Then at paragraph 59, the judge turned his attention to the issue of the appellant's conversion to Islam, in which he had concluded that it would not be either unreasonable or impractical to require the appellant to relocate to other areas of Nepal which were Muslim-dominated.
39. In answer to a question from the Tribunal, Mr Bramble said that whether or not the appellant would be inclined to proselytise was not material, because she could relocate.
40. Nowhere within the bundle was there information of magnitude which had not been taken into account by the judge. There was no evidence which the judge had ignored which could have moved him or any other judge to come to a different conclusion. The findings of the judge were adequately reasoned in light of the adverse view taken by the judge as to the appellant's credibility, as expressed at paragraph 60 (which is where the judge found that the reason she wished to remain in this country was not because of a genuine fear of persecution but because "she believes that this country will provide more opportunities for her in life, as compared to returning to Nepal").

Discussion
41. I note the submission at paragraph 16 of the grounds that the judge had failed to have specific regard to the evidence submitted and that his reference to "all of the evidence having been taken into account, at paragraph 55" was "generic" but having considered the Decision carefully, it is clear that the judge's consideration of the evidence was not only not generic but was carefully structured (as Mr Bramble had argued in his submissions). Having referred to the evidence relied upon in the submissions which had been made, the judge gave his reasons all for rejecting the credibility of the appellant's account. The judge was entitled to take into account that the claim for asylum had been made very late and was also entitled to reject as untruthful (and not credible) that she had been threatened by the man from whom she had borrowed money. The reasons are given at paragraph 58 of the decision and are sustainable.
42. It is also clear that the judge did have regard to the evidence relied upon by the appellant because the important parts of that evidence are referred to specifically within his summary of the submissions which had been made, especially at paragraph 48, where reference is made to the change in the Constitution of Nepal, in which the appellant relied upon evidence that "the conversion of individuals is being criminalised", and which the judge recognised was said to have become very significant now, and at paragraph 50, where the judge refers to the evidence contained at page 25 of the bundle concerning the criminalising of conversion and the denial of rights which was relied on as demonstrating that "there is evidence of the harassment of Muslims and of the dominance of Hindus".
43. However, the judge was also entitled to find, as he did at paragraph 59, that evangelical activities would be unlikely to come to the attention of the authorities because the appellant had open to her the option of relocating to Muslim dominated areas in Nepal, and was entitled to conclude that he "[did] not find that it would be unreasonable or impracticable to require that the appellant relocate to such an area".
44. It is notable that Mr Chaudhury was not able to point to anything within the Constitution which made a change of faith in itself illegal, and having had regard to the evidence which has been placed before the Tribunal (and which was before Judge Buckwell) there does not appear to be any. The highest the appellant's case can be put in this regard (by reference to the Article contained at page 72 of the bundle) is that "the Constitution stipulates fines and jail time for 'any act to convert another person from one religion to another or any act or behaviour to undermine or jeopardise the religion of another'"; in other words evangelical activity is proscribed, rather than the individual decision of a person to change his or her faith.
45. Essentially, the real challenge in this appeal is to the judge's findings of fact, in which he rejected her core account as untruthful, but the judge's findings are adequately reasoned and were open to him. Having made the findings of fact that he did, including that the appellant's real motivation for claiming asylum was that she would have more opportunities in this country than in Nepal, there was no realistic basis upon which he could regard her as a "vulnerable" person on return. As the background material (and current country guidance) is that there are Muslim areas within Nepal to which this appellant could relocate, and as the judge's finding at paragraph 59 that it was neither unreasonable nor impractical to require her to do so was open to him and cannot realistically be said on the evidence to be perverse, she would be free within those areas to discuss her religion with like-minded co-religionists and would have no occasion on which she would need to discuss her views with non-Muslims such as might cause her to fall foul of the new Constitution.
46. It follows that I do not consider that there has been any material error in Judge Buckwell's decision and accordingly this appeal must be dismissed.

Decision
There being no material error of law in the decision of the First-tier Tribunal, the appellant's appeal is dismissed.

Signed:

Upper Tribunal Judge Craig Date: 4 November 2016