Tribunal decisions

The decision

IAC-FH-NL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04410/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 March 2017
On 06 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

KS
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Maqsood, Solicitor
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge M A Khan) dismissing her appeal against the respondent’s decision of 20 April 2016 refusing to grant her asylum or humanitarian protection.

Background

2. The appellant is a citizen of Bangladesh, born on 11 February 1992. She entered the UK as a student on 1 October 2010 with entry clearance valid until 31 December 2014. On 12 July 2013 her student visa was curtailed due to non-attendance and her sponsor’s withdrawal of sponsorship. On 24 December 2013 she applied for leave to remain as a student which was refused with no right of appeal. On 16 March 2015 she was served notice of overstaying in the UK and on 17 November 2015 she claimed asylum.

3. The basis of her claim can be summarised as follows. Her problems began in April 2011 when she was contacted by S and his sister R and asked by them to join in a discussion about problems relating to S’s marriage as he was married to the appellant’s best friend but had also had an affair with the appellant’s sister. The appellant said she was picked up by S in a taxi and taken to a hotel and R’s boyfriend was picked up as well.

4. At the hotel they tried to force the appellant to drink and join in a sex game but she contacted a friend to come and collect her and tried to run from the room but R grabbed her by the hair. She managed to escape and went downstairs to the reception where she contacted the police. The appellant said that she was punched by R in the presence of the police and R was arrested. The appellant gave a statement to the police and later R told her to withdraw her statement and complaint or she would attack her family in Bangladesh. S later returned to Bangladesh and forcibly married the appellant’s sister. S was killed in a tragic accident on 9 September 2011 but the case was never investigated by the police.

5. The appellant returned to Bangladesh later in 2011 and was seen by a friend of S’s father. When she returned to her car her driver was bleeding from his head and he told the appellant that she must run away or she would be taken. This was reported to the police but the matter was not investigated and instead her driver was beaten and accused of selling the car. Later, there was an attempt to kidnap her brother in about February 2016 in retaliation for the death of S. It was the appellant’s fear that were she to return to Pakistan, she would be killed by S’s father, a politician, because of problems relating to his deceased son.

6. The respondent accepted that the appellant’s nationality and identity were as claimed but she was not satisfied that the appellant had been threatened by people linked to S’s father because of problems relating to his son.

The hearing before the First-tier Tribunal

7. At the hearing before the First-tier Tribunal the appellant gave oral evidence. She adopted her witness statement dated 11 October 2016. She said that generally speaking the problems she faced were because of her older sister’s relationship with S and there was no other reason why she could not return to Bangladesh. She said that her mother was still in hiding in Bangladesh and was applying for a visa to join the appellant’s brother in Australia. In cross-examination she said that there was no evidence in the form of a witness statement from the police officer who attended at the hotel and that she had only been given a police report number. She had not attended the hospital and there was no medical evidence. She referred to her mother’s report to the police in Bangladesh in the bundle of documents (‘A’) at A28 - 34. S’s father was not mentioned in any of her mother’s reports because he sent other people and did not come himself. The people who had attacked her mother were sent by him. She said that her mother had been on a visit to Malaysia and had been on visits to the UK on eight occasions, the last time in 2014. S’s father blamed her family for S’s death. S had been drunk at the time of the accident and she had found out that his father had been saying that his son was drunk because of the relationship with her older sister. She accepted that she had never been personally attacked other than in the hotel incident. She had not obtained a statement from her sister. She had asked for one but had not been given one.

8. When setting out his findings on credibility the judge noted that the appellant had entered the UK as a student and subsequently became an overstayer. She had not claimed asylum until 17 November 2015, over five years after her entry into the UK. The incident at the hotel had taken place in 2011 but even then it had taken the appellant over four years to claim asylum. The judge did not find that these were actions of a person in fear of persecution in their home country and that, if she had been in such fear, she would have claimed asylum as soon as she came to know of the threat against her. The judge was not satisfied that the appellant’s evidence was credible or consistent in that if she was a target for S’s family they would have targeted and harmed her when she was in Bangladesh.

9. The appellant had said that her mother had been attacked, was in hiding from S’s family and their property had been damaged. At the same time her mother had recently travelled to Malaysia and had also visited the UK on eight occasions, the last time in 2014. The judge referred to the documentary evidence produced, commenting that none of the complaints linked S’s father to any of the incidents alleged by her mother. He found that the appellant had simply put events together for the purposes of her asylum claim without providing any link between them and that her evidence was not credible or consistent. He said that there was no evidence from the appellant’s sister or even a statement to verify the appellant’s claim and commented that if anyone was a target for S’s family, it would be the appellant’s sister.

10. In summary, the judge found on the lower standard of proof that the appellant had failed to establish that she would be persecuted in Bangladesh and he did not accept her evidence that she feared S’s father or his family. For these reasons the appeal was dismissed.

The Grounds and Submissions

11. In the grounds it is argued that the judge failed to make findings on a number of important material events or attacks on the appellant’s family members set out in the supporting documents and chronology. These are particularised in para 3 of the grounds as follows: 5 June 2012 - kidnap attempt on the appellant’s sister, 7 October 2014 - appellant’s mother’s restaurant was robbed, 8 December 2014, her mother’s shop forcefully closed by S’s father’s people, 9 December 2014, her mother receives anonymous death threats, 5 June 2015, attempted kidnap of appellant’s brother, and 1 February 2016, second failed attempt to kidnap her brother.

12. Secondly, it is argued that the judge failed to consider and make findings on what are described as “undisputed material evidence and facts” as identified in para 4 (a)-(h) of the grounds. It is asserted that the appellant’s bundle provided evidence of an attack on her mother and the judge failed to assess why a middle-aged woman would be attacked in a brutal way, to make findings on the appellant’s brother being sent away for safety or to consider the sufficiency of protection in that her mother reported several matters to the police but no arrest or investigations were made. It is argued that the appellant had explained why S’s father was not mentioned in the police reports and the judge’s assessment was flawed in expecting a minister of the current government to be personally named in such reports in the light of the objective evidence showing corruption and influence within the law enforcement agencies in Bangladesh. The appellant’s great uncle had been murdered in a suspicious road accident but no credible investigation was carried out and the judge had failed to address the fact that family members in Bangladesh including the appellant’s mother and siblings had fled and that the timing of this was consistent with the chronology of events.

13. Mr Maqsood adopted the grounds in his submissions, arguing that the judge had failed to make findings of fact on material matters relating to the risk of persecution and whether there was effective protection in Bangladesh. He referred to the reports in the documents at A32 and A36 and to the documents at A38-42 but the judge had failed to deal with these adequately or at all. In particular, he had not dealt with the evidence relating to the appellant’s brother. Mr Maqsood submitted that the judge had not simply failed to give adequate reasons but had failed to refer to relevant material when assessing the appellant’s case. He had left a number of relevant matters out of account in his assessment of whether the appellant’s evidence was to be believed.

14. Mr Melvin submitted that the judge had made adequate findings of fact and given adequate reasons. He had set out at [38]-[44] why he had not accepted that the appellant had given a truthful account. He had been entitled to find that it was implausible that the family would be held responsible for S’s death and in particular the judge had explained at [42] why he was not satisfied that the documentary evidence was reliable. He referred to the Tribunal determinations in Shizad [2013] (sufficiency of reasons) UKUT 85 and Budhathoki (reasons for decisions) [2014] UKUT 341 and submitted that the judge need not give extensive reasons for his finding that the appellant’s evidence was not credible. Having found a lack of credibility, there was no obligation on him to consider whether there would be a sufficiency of protection on return. The judge, so he argued, had properly considered all the core points in the appellant’s case and made clear findings of fact.

Assessment of the issues

15. The issue for me is whether the judge erred in law by failing to make findings on the issues described in the grounds as important material events and attacks on the appellant’s family members or to consider and make findings on specific material evidence and facts as set out in the grounds. The onus was on the appellant to establish that there was a reasonable degree of likelihood or a serious possibility that the facts on which she based her fear of returning to Bangladesh were established. However, the judge found that this was not the case. When considering the appellant’s credibility, the judge was entitled to take into account the fact that if she had a genuine fear, she would have claimed asylum as soon as she came to know of the threats against her. He took into account s.8(2) and (6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 as he was required to do and was entitled to reach the view that these factors seriously damaged the appellant’s credibility. He was also entitled to take into account the appellant’s evidence that she herself had not been attacked in Bangladesh and to assess what she said about her mother being attacked and in hiding in the light of the acceptance that she had been able to visit the UK regularly, the last time in 2014, and had had no problems in leaving and re-entering Bangladesh.

16. The judge was aware of the documentary evidence, referring to it at [9] and more specifically at [42]. He was entitled to comment that none of the complaints relied on linked S’s father to any of the incidents alleged by her mother. He was also entitled to draw an adverse inference from the fact that there was no evidence from the appellant’s sister and to take the view that it would be reasonable to expect such evidence to be produced. The judge noted at [43] that the appellant had stated that her sister was depressed and they did not talk to each other but the judge did not accept that explanation as is clear from his rhetorical comment that if the sister was so depressed that she could not provide a statement, how could she continue with her studies?

17. I accept that the judge did not deal with each and every item in the list set out in the grounds but there is no reason to believe that he was not fully aware of the case being put by the appellant and in particular the fact that it was her claim that members of her family had been targeted at the instigation of S’s father following the death of his son. In this context the judge was entitled to comment that the appellant had failed to explain why S’s father would hold her family and in particular herself responsible for S’s death [42]. The judge was aware of the assertion that S’s father was said to be a powerful man but it was an issue of fact for him to assess why he was not named in the reports. It was argued that this was because he sent other people and did not come himself but the judge rejected this explanation.

18. I am not satisfied that the judge erred in law by failing to deal specifically with each of the allegations. When the decision is read as a whole it is clear that the judge did not believe that either the appellant or members of her family including her mother and brother had been targeted. It was argued that the judge failed to deal with the evidence about the alleged kidnap of the appellant’s younger brother but he was clearly aware of that evidence, referring to it in his summary of the evidence at [19]. In the light of the judge’s findings on credibility, it must follow that he did not accept her evidence about what was said to have happened to her mother or her brother.

19. So far as sufficiency of protection was concerned, the judge did not err by failing to consider this issue when he had made a finding that the appellant’s evidence was not credible.

20. It was accepted by the appellant’s counsel at the hearing before the First-tier Tribunal at [36] that her case turned on her credibility. I am satisfied that the judge’s conclusion that her evidence was not credible was properly open to him for the reasons he gave.

Decision

21. The First-tier Tribunal did not err in law and the decision dismissing the appeal stands. The anonymity made by the First-tier Tribunal remains in force until further order.

Signed H J E Latter Date: 31 March 2017

Deputy Upper Tribunal Judge Latter