Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08251/2016

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Decision & Reasons Promulgated
On 28th November 2017
On 7th December 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

Mr M P M
(ANONYMITY ORDER MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Jorro (Counsel)
For the Respondent: Mr P Kotas (Home Office Presenting Officer)

DECISION AND REASONS
1. I shall refer to the parties as "the appellant" and "the Respondent". This is an error of law hearing. I consider whether or not there is a material error of law in the decision the First-tier Tribunal (Judge Amin) ("FTT") promulgated on 29th March 2017 in which the appeal was dismissed on protection grounds.

Background
2. The appellant is a citizen of Bangladesh and claimed asylum on the grounds of his sexual orientation, namely that he is gay and he fears persecution living as an openly gay man. He is a member of a particular social group who would be unable or unwilling to avail himself of protection.
FTT decision
3. The FTT found that his evidence was entirely credible and that he was gay. The FTT found that there would be sufficient protection from the police or authorities living as a homosexual in Bangladesh [72]. It found that the appellant could relocate and live openly in some part of that country where there is an active gay community and where he would not be persecuted. The FTT found that prosecution for homosexual acts was rare in Bangladesh and that homosexuality was a part of Bangladeshi culture [73 -74]. There would be discrimination but not persecution.
Application for permission to appeal
4. In ground one it was contended that the FTT conflated the risk of persecution with the risk of prosecution and further failed to explain what kind of lifestyle that the appellant was expected to forego on return to Bangladesh.
5. In ground two it was argued that the FTT failed to place sufficient weight on the expert evidence of Dr Siddiqi and the credible evidence of the appellant and his witnesses together with the background reports.
Permission grant
6. Permission was granted by UTJ Plimmer who found that there were arguable grounds that the FTT having found the appellant to be credible and that he will live as an openly gay man in Bangladesh placed too much weight on the absence of criminal prosecutions and failed to take into account the expert evidence that even without prosecution the extent of the likely discrimination meets the threshold of persecution. It was arguable that inadequate reasons were given for rejecting the expert evidence.
Rule 24 Response
7. The respondent opposed the application arguing that the FTT properly concluded that there was discrimination not persecution and the appellant was not a LGBT activist and not at risk. The decision was sustainable when looked at holistically.
Submisssions
8. Mr Jorro expanded on his detailed skeleton argument. Mr Kotas acknowledged that the FTT accepted all of the appellant's evidence. The FTT looked at the issue comparatively not as set out in HJ(Iran). However the FTT properly took into account the risk of prosecution and reached the conclusion that there would be discrimination. Overall the decision was not irrational.
Discussion and conclusion
9. I found that the FTT materially erred in law and failed to apply the proper test in HJ(Iran) (paragraph 78-82). Whilst the absence of prosecutions was a relevant factor, it was not the main test. The appellant's evidence, which the FTT accepted entirely, was that there was a risk of violence as shown by the experiences of gay men in the Ramna park in Dhaka and which was consistent with the expert's evidence. It was accepted by the FTT that the appellant had to hide his sexuality in Bangladesh and that again was consistent with the background material. In reaching a decision the FTT failed to focus on the actual evidence found to be credible which formed the finding of fact, and failed to reach its decision with regard to the correct issue, persecution. In addition there is no explanation by the FTT as to what was meant by "what he will not be able to do ?" [72] and /or reference to evidence that there are open and safe gay communities in Bangladesh [73] as found by the FTT. I adopt the arguments put in Mr Jorro's skeleton arguments and conclude that the grounds of appeal are made out.
Decision
10. There is a material error of law in the decision which shall be set aside. I heard submissions before re making the decision. I have read the current Country Policy and Information Note Bangladesh: Sexual orientation and gender identity dated November 2017 admitted under Rules 15(2A) UT Procedure Rules. I take the findings made by the FTT, which fully accepted his account in all material respects. I am satisfied that the evidence established that the appellant faces a real risk of persecution on return to Bangladesh as a man living an openly gay life. I rely on the expert report (which was not challenged) and which refers to the Home Office's December 2016 guidance in which it is stated that it is not possible to be openly gay and that there are risks of violence at the hands of thugs ("mastans") and Islamist militants, and of arrest and extortion from the police [65]. I am satisfied that in the event that the appellant lives as an openly gay man and as he has lived in the UK, he would face a real risk of assault and ill treatment. There is insufficient protection available from state agencies. The reason why the appellant was not persecuted in Bangladesh was because he hid his sexuality and acted secretively [57]. Whilst I accept that the current Guidance specifically refers to risks to LGBT activists, there is nevertheless reference also to risks to LGBT people who do not live openly in order to avoid discrimination and violence including attacks from non state actors (2.3.16) At 2.3.17 the 2017 guidance states " in general, an LGBT person who does not conceal their sexual orientation or gender identity may be at risk of treatment , which by its nature and repetition amounts to persecution or serious harm". It further states that the State appears able but unwilling to offer effective protection and the person will not be able to avail themselves of the protection of the authorities (2.4.5). There is found to be no option of internal relocation for those men who choose not to conceal their sexual identity (2.5.3). On the facts as found I conclude that the appellant is a refugee. I allow the appeal on protection grounds.

Signed Date 6.12.2017
GA Black
Deputy Judge of the Upper Tribunal

ANONYMITY ORDER MADE
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 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.

NO FEE AWARD

Signed Date 6.12.2017

GA Black
Deputy Judge of the Upper Tribunal